Marriage of Kawahakui

• Court: Colorado Court of Appeals
• Decided: January 23, 2025
• Docket: 24CA0613
• Status: Unpublished

Opinion

24CA0613 Marriage of Kawahakui 01-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0613 Pueblo County District Court No. 23DR575 Honorable Dorothy A. Radakovich, Magistrate

In re the Marriage of

Reed Kimokeo Tatsuo Kawahakui,

Appellee,

and

Ashley Jean Kawahakui,

Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025

Law Office of Dailey & Pratt, LLC, Joel M. Pratt, Colorado Springs, Colorado, for Appellee

Hassler Law Firm, LLC, Wesley Hassler, Patrick V. Jones, Pueblo, Colorado, for Appellant ¶1 Ashley Jean Kawahakui (wife) appeals the district court

magistrate’s judgment that dissolved her marriage with Reed

Kimokeo Tatsuo Kawahakui (husband). We affirm.

I. Dissolution Proceedings

¶2 In 2023, husband petitioned the court to dissolve the parties’

twelve-year marriage, and wife responded by filing a waiver and

acceptance of service. After the parties appeared at the initial

status conference, nothing happened in the case for the next six

weeks. The court issued a delay prevention order and directed the

parties to show cause why the case should not be dismissed for

failure to prosecute. In response, husband filed a sworn financial

statement and certified that he had sent wife his financial

disclosures. He also filed a proposed parenting plan for their child,

a proposed allocation of the marital assets, and calculations for the

maintenance and child support obligations. Wife did not respond.

¶3 The court then scheduled the permanent orders hearing. At

the hearing, which occurred about seven weeks later, husband

appeared; wife did not. Husband testified, and the court later

dissolved the marriage and entered permanent orders. In doing so,

the court divided the marital assets, allocated parental

1 responsibilities, determined child support, and declined to award

maintenance to either party.

II. Due Process

¶4 Wife contends that the district court violated her

constitutional right to due process by not giving her sufficient

notice of the permanent orders hearing. We are unpersuaded.

A. Preservation

¶5 As an initial matter, husband argues that wife did not preserve

this issue for our review and that we therefore should not consider

it. See In re Marriage of Martin, 2021 COA 101, ¶ 13 (stating that to

preserve an issue for appellate review, a party must bring the issue

to the district court’s attention so that the court has an opportunity

to rule on it); In re Marriage of Crouch, 2021 COA 3, ¶ 13 (declining

to review an issue raised for the first time on appeal). Wife

acknowledges that she did not raise this issue until after the

judgment, but she argues that we should elect to review her

contention under the doctrine of “plain error” because she did not

have an opportunity to raise it with the district court magistrate.

See In re Estate of Ramstetter, 2016 COA 81, ¶ 73 (We “review

unpreserved civil claims ‘very rarely’ and only ‘where necessary to

2 prevent manifest injustice.’” (quoting JW Constr. Co. v. Elliott,

253 P.3d 1265, 1271 (Colo. App. 2011))). However, we need not

resolve this dispute. Even if we assume that we may review wife’s

contention, it fails on the merits. See In re Marriage of Mack, 2022

CO 17, ¶ 12.

B. Governing Legal Standards

¶6 Due process requires a party to be provided notice and a

meaningful opportunity to be heard. Armstrong v. Manzo, 380 U.S.

545, 550 (1965). However, it “is flexible and calls for such

procedural protections as the particular situation demands.” Van

Sickle v. Boyes, 797 P.2d 1267, 1273 (Colo. 1990). Notice therefore

is sufficient if it is reasonably calculated, under the circumstances,

to apprise a party of the pendency of the action. Armstrong,

380 U.S. at 550; Ault v. Dep’t of Revenue, 697 P.2d 24, 27 (Colo.

1985). A party who fails to appear at a hearing despite receiving

advance notice has not been deprived of due process. In re Taylor,

134 P.3d 579, 584 (Colo. App. 2006).

¶7 We review de novo whether a party was accorded sufficient

due process. People in Interest of R.J.B., 2021 COA 4, ¶ 26.

3 C. Analysis

¶8 The record demonstrates that wife was reasonably apprised of

the permanent orders hearing and, therefore, was not deprived of

due process. See Armstrong, 380 U.S. at 550; Ault, 697 P.2d at 27;

Taylor, 134 P.3d at 584.

¶9 Wife participated in the case early on. She received the

petition, summons, and case management order, and she appeared

at the initial status conference. Despite receiving this information

and learning of her obligations, wife did not further participate in

the dissolution proceedings.

¶ 10 Wife suggests that her lack of participation in the permanent

orders hearing was due to the lack of proper notice. However, a

court may reasonably rely on notice sent by mail to provide a party

with notice of the judicial proceeding. See Ault, 697 P.2d at 28; cf.

Dews v. Dist. Ct., 648 P.2d 662, 663 (Colo. 1982) (noting that a

certificate of mailing creates a rebuttable presumption that the

document was mailed to the party). The court issued a delay

prevention order and later issued an order scheduling the

permanent orders hearing. The court’s register of actions, of which

we may take judicial notice, see Harriman v. Cabela’s Inc., 2016

4 COA 43, ¶ 64, reflects that these orders were sent by United States

mail to wife at the parties’ marital home. Wife admits that she

continued to live with husband in the marital home throughout the

dissolution proceedings. And nothing in the record shows that the

orders were returned as undeliverable.

¶ 11 The court mailed the same orders to husband at the exact

same address, and he did not report any problems receiving them.

Husband responded to the delay prevention order, filing documents

concerning his financial disclosures, the allocation of parental

responsibilities, the division of property, and the determinations on

maintenance and child support. Husband also appeared at the

scheduled permanent orders hearing and presented evidence in

support of his requests.

¶ 12 Still, wife asserts that she never received the court’s orders

and, therefore, did not, in fact, receive notice. But, as discussed,

the court’s orders were mailed to her residence, and she directs us

to nothing in the record showing that the service of those orders

was insufficient or ineffective. See Ault, 697 P.2d at 28; cf. Dews,

648 P.2d at 663. Moreover, husband certified that when he

responded to the court’s delay prevention order, he hand delivered

5 his filings to wife at their home, providing in-person notice to wife

that the dissolution case was moving forward. See C.R.C.P.

5(b)(2)(A)(i) (noting that service may be accomplished by hand

delivery).

¶ 13 Wife further suggests that the court erred by failing to

diligently inquire into whether she received notice. See Davis v.

Klaes, 346 P.2d 1018, 1019 (Colo. 1959) (noting that the district

court “made diligent inquiry as to whether the defendant knew his

cause had been set for trial”). However, at the hearing, the court

asked husband about wife’s failure to appear. Husband testified

that she was at home and that he thought “she forgot” about the

hearing. Given wife’s conduct throughout the case, we are not

persuaded that this inquiry was inadequate. And contrary to wife’s

claim, nothing in Davis required the court to conduct any additional

inquiry or make specific findings on her notice.

¶ 14 The court therefore gave wife adequate notice of the

proceedings in accordance with her due process rights. See

Armstrong, 380 U.S. at 550; Ault, 697 P.2d at 27; Taylor, 134 P.3d

at 584. In light of this notice, the cases relied on by wife to support

her claim of reversible error are not applicable because those cases

6 were based on a party’s lack of notice. See Armstrong, 380 U.S. at

546-47, 551; Emerick v. Emerick, 129 P.2d 908, 908-09 (Colo.

1942).

III. Default Judgment

¶ 15 Wife next contends that the court erred by entering a default

judgment against her without the advance notice required by

C.R.C.P. 55. Her contention is misplaced.

¶ 16 When a party has failed to plead or otherwise defend against

an action, the party may be found in default, and the party seeking

relief may ask for the entry of judgment against the defaulting

party. C.R.C.P. 55(a), (b)(1); see C.R.C.P. 121, § 1-14. “If the party

against whom judgment by default is sought has appeared in the

action, the party . . . shall be served with written notice of the

application for judgment at least 7 days” before the hearing on the

default judgment. C.R.C.P. 55(b)(1).

¶ 17 However, the procedures set forth by C.R.C.P. 55 are not

applicable when there is not a default but a judgment on the

merits. See Sunshine v. Robinson, 451 P.2d 757, 759 (Colo. 1969)

(“The taking of evidence and entry of judgment in the absence of a

party who knows his case is set for trial is not a proceeding under

7 the default provisions of the rules, but is instead a trial on the

merits.”); Davis, 346 P.2d at 1019 (same).

¶ 18 As discussed above, the court provided wife with adequate

notice of the permanent orders hearing. The court then conducted

the evidentiary hearing with husband, received his testimony, and

considered the other documents filed by him. The court dissolved

the marriage and entered permanent orders based on that evidence.

The court therefore did not enter a default judgment. (Nor did

husband seek a default judgment.) The court rendered a judgment

on the merits. See Sunshine, 451 P.2d at 759; Davis, 346 P.2d at

1019. Thus, the notice requirements of C.R.C.P. 55(b)(1) were not

applicable.

IV. Disposition

¶ 19 The judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.