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DIVISION II
Van Deren, C.J.—Christopher Arthur Smith argues that the trial court erred in entering a
decree of dissolution because the trial court did not have personal jurisdiction over him. He also
argues that the trial court abused its discretion when it entered orders compelling discovery;
imposed sanctions against him, including striking his pleadings and defaulting him; failed to
independently consider the issues; and failed to conduct reasonable inquiry regarding the property
and income of the parties at trial. He further argues that the trial court erred in entering the
decree because he was not properly served numerous motions. He lastly argues that we
should consider various issues he did not preserve or inadequately raised on appeal, which we do
No. 36657-6-II
FACTS3
Christopher and Christa were married on October 29, 1997. At the time, Christa had two
sons from a previous marriage. The parties have one daughter together. Christa has suffered
from various illnesses for decades, including obsessive compulsive disorder, panic disorder,
agoraphobia, and migraine headaches. Accordingly, she is disabled and has not worked outside
the home since 1989. Christopher has suffered a history of depression and drug and alcohol abuse
Until 2003, Christopher and Christa lived in California; then they purchased a house in
1
Christa Smith moves to dismiss Christopher Smith’s appeal “because he has been found in
contempt for failing to comply with the decree.” Br. of Resp’t at 12. She cites to a September 6,
2007 trial court order holding Christopher in contempt for intentionally failing to pay child
support and spousal maintenance. Christopher disputes this. Because the parties do not include
sufficient post decree pleadings or records to substantiate their arguments, we decline to address
this issue.
2
Because they have the same last name, we refer to Christopher and Christa by their first names.
In doing so, we mean no disrespect.
3
In his opening brief, Christopher exclusively “refer[s] to the document sub number in the index,
as opposed to the clerk’s paper designation as required under RAP 10.4(f).” Br. of Resp’t at 19
n.2. “It would be well within our discretion to decline to reach any issues supported by such
inadequate citation to the record.” Keiffer v. City of Seattle Civil Serv. Comm’n, 87 Wn. App.
170, 172 n.1, 940 P.2d 704 (1997). But to bring a decade of litigation to a close, the Keiffer
court ultimately took “the extraordinary measure of searching the record [itself] for the
information required to resolve these issues.” 87 Wn. App. at 172 n.1. Similarly here, this matter
should be resolved for the parties’ benefit, as well as their child’s benefit.
In addition, under RAP 18.9(a), we may, on our own initiative, order a party or counsel
who fails to comply with the rules of appellate procedure to pay sanctions to the court.
Christopher’s brief fails to follow RAP 10.4(f) citation requirements throughout, and it completely
fails to direct us to specific parts of the record that support his arguments. But we do not impose
sanctions on this occasion, expecting that such error shall not be repeated.
2
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Battleground, Washington. Although Christa and her children moved to Washington in 2003,
Christopher remained living in their home in California. In 2006, Christa told Christopher that she
intended to seek a divorce. He threatened to kill her and cause physical harm to her children, so
In response, Christopher filed a petition for dissolution in California. Christa filed for
dissolution in Washington a few days later, and she personally served Christopher in California.
The California trial court later dismissed Christopher’s action entirely, deferring to Washington’s
jurisdiction. In his response to Christa’s petition, Christopher agreed that Washington was his
daughter’s “home state” and requested that the Washington court dispose of the marital
community’s property and liabilities, enter a decree of dissolution, approve his proposed parenting
for deposition in the Washington action, the trial court ordered him to answer the interrogatories
and participate in the discovery process. Ultimately, the trial court struck Christopher’s pleadings
and defaulted him based on his failure to comply with the discovery orders. On two occasions
following the trial court’s order of default, Christopher asserted that he did not receive notice of
orders and other papers and that the trial court therefore should not have sanctioned him for
Christopher did not personally appear at trial three months after being defaulted, and the
trial court rejected Christopher’s attorney’s request to “actively participate” at the trial. The trial
court determined Christopher’s income based on historic income levels because he refused to
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produce any information on his current or recent past earnings, assets, investments, or other
income. The trial court divided the couple’s assets almost equally and awarded maintenance and
filing a lis pendens against those properties. The trial court subsequently vacated the lis pendens
on Christa’s motion. Christopher appeals orders entered during the pendency of the case, the
dissolution decree, and the post dissolution order vacating the lis pendens.
ANALYSIS4
I. Standard of Review
“Trial court decisions in dissolution proceedings will seldom be changed on appeal. The
party who challenges a decision in a dissolution proceeding must demonstrate that the trial court
manifestly abused its discretion.” In re Marriage of Stenshoel, 72 Wn. App. 800, 803, 866 P.2d
635 (1993). “[W]hen a trial court does not have discretion in a particular matter, and its decision
rests instead on a question of law, then this court will review the trial court’s decision de novo.”
Rudolph v. Empirical Research Sys., Inc., 107 Wn. App. 861, 866, 28 P.3d 813 (2001).
“When parties are dissatisfied with the substance of a dissolution decree, ‘[o]rdinarily, a
review to reach an abuse of discretion is the proper remedy, rather than a challenge to the court’s
jurisdiction.’” In re Marriage of Kowalewski, 163 Wn.2d 542, 553, 182 P.3d 959 (2008)
(quoting Arneson v. Arneson, 38 Wn.2d 99, 102, 227 P.2d 1016 (1951)). If the underlying facts
4
As explained below, the trial court struck Christopher’s pleadings. Thus, we do not give weight
to arguments that rely on the struck pleadings.
4
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are undisputed, we review a trial court’s ruling on personal jurisdiction de novo. In re Marriage
We review a trial court’s sanctions for discovery violations under an abuse of discretion
standard. Smith v. Behr Process Corp., 113 Wn. App. 306, 324, 54 P.3d 665 (2002). This
standard “gives the trial court wide latitude in determining appropriate sanctions, reduces trial
court reluctance to impose sanctions, and recognizes that the trial court is in a better position to
Finally, “[a] property division made during the dissolution of a marriage will be reversed
Wn.2d 795, 803, 108 P.3d 779 (2005). We also do not disturb sanctions the trial court imposes
absent a clear showing that a trial court’s discretion was “‘manifestly unreasonable, or exercised
on untenable grounds, or for untenable reasons.’” Mayer v. Sto Indus., Inc., 156 Wn.2d 677,
684, 132 P.3d 115 (2006) (quoting Associated Mortgage Investors v. G. P. Kent Constr. Co., 15
Wn. App. 223, 229, 548 P.2d 558 (1976)). “A discretionary decision rests on ‘untenable
grounds’ or is based on ‘untenable reasons’ if the trial court relies on unsupported facts or applies
the wrong legal standard.” Mayer, 156 Wn.2d at 684 (internal quotation marks omitted) (quoting
II. Jurisdiction
A. Personal Jurisdiction
Relying on RCW 4.16.170, Christopher argues that the trial court lacked personal
jurisdiction over him “because there was no valid service within the 90 days provided under
5
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RCW 4.16.170.” 5 Br. of Appellant at 21. As Christa correctly notes, “[t]here is no statute of
limitations for dissolving a marriage,” so this statute is inapplicable. Br. of Resp’t at 13 (internal
He also argues that Christa failed to properly comply with RCW 4.28.185 for service on
out-of-state respondents. Christa and the children moved to Washington from California in 2003,
but Christopher remained in California. Christopher was personally served in California with the
Washington petition on March 13, 2006. Christa filed the RCW 4.28.185 affidavit on August 18,
But Christopher’s response to Christa’s petition admitted that Washington had jurisdiction
over the marriage and over their daughter as her “home state.” CP at 708. He also requested that
5
RCW 4.16.170 states:
For the purpose of tolling any statute of limitations an action shall be deemed
commenced when the complaint is filed or summons is served whichever occurs
first. If service has not been had on the defendant prior to the filing of the
complaint, the plaintiff shall cause one or more of the defendants to be served
personally, or commence service by publication within ninety days from the date of
filing the complaint.
(Emphasis added.)
6
Christopher argues that the RCW 4.28.185(4) affidavit Christa filed is defective because it runs
afoul of CR 4(g)(6). CR 4(g)(6) provides that proof of personal, out-of-state service be by “the
affidavit of the person making the service, sworn to before a notary public, with a seal attached,
or before a clerk of a court of record.” Contrary to Christopher’s assertion, this rule does not
apply to affidavits under this statute, but to affidavits of service. See CR 4(g). Here, when
Christa filed a sworn affidavit by the person who personally served Christopher in California, she
satisfied this rule requiring she file proof of service.
Christopher also argues that the affidavit of service dated March 16, 2006, is “neither
endorsed upon nor attached to the summons” in violation of CR 4(g)(2). Amended Reply Br. of
Appellant at 6. But Christopher only raises this error in his reply brief and, because arguments
made for the first time in a reply brief will not be considered by our court, we decline to review it.
See RAP 10.3(c); Schrock v. Gillingham, 36 Wn.2d 419, 429, 219 P.2d 92 (1950).
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the court “[e]nter a decree[, a]pprove [his] parenting plan for the dependent children[, d]etermine
support for the dependent children[, and d]ispose of property and liabilities.” CP at 767. He did
not raise the issue of personal jurisdiction; rather, he requested affirmative relief from the court
and, thus, waived this argument. Although Christopher claims that he “immediately objected to
the court’s jurisdiction[] and brought a motion to dismiss,” he fails to cite to the record to support
Thus, we hold that the trial court had personal jurisdiction over Christopher and the trial
court did not err in hearing and rendering decisions in this case. Christopher’s claim of lack of
Next, Christopher argues that the trial court lacked proper jurisdiction over the property in
California. But under RCW 26.09.080, a trial court may divide property of the parties, so long as
it has personal jurisdiction over them. “[A] court of equity, acting in personam, has jurisdiction
to decree the conveyance of land situated in another state.” Donaldson v. Greenwood, 40 Wn.2d
238, 251, 242 P.2d 1038 (1952). And in his response to Christa’s petition, Christopher requested
affirmative relief from the Washington trial court, i.e., that the court “[d]ispose of [their] property
and liabilities.” CP at 767. He consented to personal jurisdiction in Washington and asked the
court to exert its jurisdiction over the marital property and, thus, this claim also fails.
Christopher challenges the trial court’s imposition of discovery sanctions and its ultimate
sanction of defaulting him and striking his pleadings for his failure to participate in discovery after
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No. 36657-6-II
numerous warnings and after being held in contempt for violating the court’s discovery orders.
Christopher argues that the “trial court was without authority to order any sanctions at all
for discovery violations” because a CR 26(i) conference did not occur prior to the trial court’s
Initially, under RAP 2.5(a), our court “may refuse to review any claim of error which was
not raised in the trial court” except “(1) lack of trial court jurisdiction, (2) failure to establish facts
upon which relief can be granted, and (3) manifest error affecting a constitutional right.” And
arguments not advanced to the trial court should not be considered on appeal. In re Marriage of
Studebaker, 36 Wn. App. 815, 818, 677 P.2d 789 (1984). RAP 10.3(a)(6) directs parties to make
their arguments with “references to relevant parts of the record.” Here, we have no evidence that
Christopher timely raised this objection at the trial court and he failed to point to any part of the
record where he made this objection. But our own review of the record shows that he did not
raise the objection to the trial court’s order sanctioning him for failure to comply with its orders
on discovery.
7
CR 26(i) states:
The court will not entertain any motion or objection with respect to rules 26
through 37 unless counsel have conferred with respect to the motion or objection.
Counsel for the moving or objecting party shall arrange for a mutually convenient
conference in person or by telephone. If the court finds that counsel for any
party, upon whom a motion or objection in respect to matters covered by such
rules has been served, has willfully refused or failed to confer in good faith, the
court may apply the sanctions provided under rule 37(b). Any motion seeking an
order to compel discovery or obtain protection shall include counsel’s
certification that the conference requirements of this rule have been met.
(Emphasis added.)
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Christopher cites to “SSCP20”8 to show that “[Christa’]s affidavit of counsel did not
demonstrate that the CR 26(i) conference had been met [sic].” Br. of Appellant at 32. In
Christa’s motion and affidavit for CR 37 relief, her counsel swears that he sent a series of email
correct that a CR 26(i) conference did not occur and the evidence in the record shows that
Christa’s counsel attempted to schedule a CR 26(i) conference by email, in violation of this rule.
But Christa points out that Christopher’s counsel clearly waived any objection by agreeing
to the complained of order compelling Christopher to fully answer interrogatories and stating that
this agreed order is binding on Christopher “regardless [of] whether a CR 26(i) conference in fact
took place.” Br. of Resp’t at 22. This conference, she argues, is a “procedural matter and not a
substantive right,” so his attorney had authority to stipulate to and waive this conference
requirement on his behalf. Br. of Resp’t at 21. Christopher argues that “an attorney’s signature
o[n] an order entered by the court does not constitute a stipulation to the terms of that order.”9
Nghia Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 729, 734, 987 P.2d
634 (1999), involved a case of medical negligence where the trial court accepted plaintiff
counsel’s concessions limiting the claims at trial. On appeal, Division Three of this court
8
This is one of the many citations that run afoul of RAP 10.3(a)(6).
9
Christopher relies on de Lisle v. FMC Corp., 41 Wn. App. 596, 597-98, 705 P.2d 283 (1985),
for this argument, but this reliance is misplaced because de Lisle involved an alleged stipulation by
counsel to an incorrect statute of limitations at oral argument on a summary judgment motion.
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No. 36657-6-II
affirmed, concluding that pursuant to CR 2A and RCW 2.44.010 counsel may “bind [a] client to
agreements or stipulations made on behalf of the client but without the client’s written agreement
or presence in court,” so long as the attorney does not “‘stipulate away a valuable right of his
client.’” Nguyen, 97 Wn. App. at 734, 35 (internal quotation marks omitted) (quoting Graves v.
P.J. Taggares Co., 94 Wn.2d 298, 303, 616 P.2d 1223 (1980)). The Graves court listed
examples of such substantive rights as “surrendering property without securing a rescission of the
contract to purchase, settlement of a tort cause of action, not recording the testimony necessary
[and] stipulating that the client is mentally ill without a hearing.” 94 Wn.2d at 304-05 (citations
omitted).
Christopher’s counsel signed the order granting CR 37 relief. His counsel’s signature
noted, “Service accepted, form and content approved and consent to entry granted.” CP at 748.
In doing so without objection to lack of a CR 26(i) conference, he waived this procedural issue,
B. Discovery Sanctions
Christopher also argues that the trial court abused its discretion in ordering sanctions
against him because it failed to (1) find that he intentionally or willfully failed to comply or that his
violations prejudiced Christa and (2) consider lesser sanctions. He also argues that the trial court
should have allowed his attorney to participate in the trial, even after he was found in default and
his pleadings stricken. Christa responds that Christopher failed to “substantively challenge[] any
of the trial court’s findings, and they are verities on appeal,” but Christopher does challenge a
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number of findings. Br. of Resp’t at 24. He does not, however, challenge the order to show
cause on contempt/judgment entered on December 15, 2006, wherein the court made its findings
Our discovery rules “authorize[] a variety of sanctions for discovery violations, from the
exclusion of evidence to a default judgment.” Smith, 113 Wn. App. at 324. Striking a party’s
pleadings and entering a default judgment are inappropriate punishments for civil contempt unless
the party has willfully refused to comply with a discovery order. In re Marriage of LeRoue, 56
Whenever a trial court imposes a harsh remedy under CR 37(b), it must consider and enter
findings on (1) whether there was a willful violation of a discovery order, (2) whether the
violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) whether the
court considered a lesser sanction. See Mayer, 156 Wn.2d at 688. Harsher sanctions include
ordering pleadings be struck and a trial by default. See Mayer, 156 Wn.2d at 690. Due process
requires that the respondent be given notice and an opportunity to be heard on the issue of
whether a default judgment is an appropriate sanction. Smith, 113 Wn. App. at 325.
1. Willfulness
For discovery violations, willfulness means “‘without reasonable excuse.’” Smith, 113
Wn. App. at 327 (quoting Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d
674, 687, 41 P.3d 1175 (2002)). Here, the trial court found Christopher “intentionally failed to
comply with lawful orders of the court.” CP at 213. In addition, the trial court found Christopher
“had the ability to comply with the order” and “has the present ability to comply with the order.”
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CP at 214. The trial court stated that “[it] gave [Christopher] time and opportunity again and
again to bring himself in compliance with the discovery orders before imposing the severe
sanction of default.” It recounted its own “painstaking and patient approach to have
In its findings of fact and conclusions of law entered on June 11, 2007, the trial court
CP at 520.
We hold that this record demonstrates that the trial court carefully articulated its basis for
finding that Christopher willfully violated its discovery orders. Christopher’s claim that it failed to
do so fails.
2. Substantial Prejudice
In finding of fact 2.20, which Christopher challenges on appeal, the trial court found that
Christopher’s
willful refusal to comply with this court’s orders and refusal to participate in a
deposition severely prejudiced [Christa]’s ability to prepare her case. [She] has
been a stay at home mother and is disabled by Obsessive Compulsive Disorder.
[She] had little knowledge about the extent of the parties’ assets. [She] was not
allowed to participate in financial decisions. [Christopher] entirely managed the
parties’ finances. Information regarding the parties’ assets and [his] income was
entirely in [Christopher]’s control. Without [his] cooperation in responding to
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discovery requests, [Christa] could not reasonably be expected to prepare for trial
in any meaningful manner.
Christopher argues that “it would be impossible for the court to determine whether
[Christa] was prejudiced, since she never supplied the court with a copy of her interrogatories or
[w]hile [he] may not have technically responded to formal interrogatories, he did in
fact respond to the allegations raised by [Christa] numerous times by his
submission of sworn declarations, by submissions of financial declarations, by the
submission of financial records, by the disclosure of his health care providers, and
by his offer to sign releases for information from those sources.
Br. of Appellant at 37. He fails, however, to provide any citation to the record to support his
assertions of compliance. Rather, his pattern of partial compliance, in ways that suited him,
supports the trial court’s finding that he substantially prejudiced Christa’s ability to prepare her
case and that she remained largely unknowledgeable about his finances or assets. Thus, the trial
court clearly considered and entered findings about the substantial prejudice to Christa, contrary
3. Alternative Sanctions
Christopher also challenges the trial court findings that it considered alternative, lesser
sanctions before entering an order of default and striking his pleadings. The trial court also
considered and in fact imposed lesser sanctions prior to entering its order of
default. The court imposed lesser sanctions (e.g. attorney fees) to coerce
[Christopher] to comply with discovery orders but he still refused. The court
issued multiple orders providing [Christopher] additional time to comply with the
orders but [he] still refused. Four months before it entered its order of default, the
trial court warned [Christopher] that the court would consider default as a sanction
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if he failed to comply with its orders. Despite this warning, [he] still refused to
comply with the discovery orders.
CP at 521.
discovery. Moreover, he was represented at hearings in which the trial court gave warnings of
sanctions that could be imposed for his failures before it ultimately struck his pleadings and found
him in default.
“If [Christopher] fails to forthwith comply with the above [order], the Court will consider
further sanctions, including terms and striking his pleadings, and entering a Decree of Dissolution
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“The Court will consider further sanctions, such as striking his pleading.” RP at 21-22.
[Christopher] may purge the contempt . . . . [b]y becoming and staying current, by
complying with the restraining order preventing contact with [Christa], by
complying with the order regarding telephone contact with the minor child, by
completely answering the interrogatories propounded to him and by accounting
for and sending to [Christa’s] counsel all funds [Christopher] was directed to
manage by prior court order[ b]y 12/31/06.
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Thus, we hold that the trial court properly and thoroughly considered alternative sanctions
before entering an order of default and striking Christopher’s pleadings. Christopher’s claim that
the trial court failed to do so and that it abused its discretion fails.
Christopher claims that the trial court abused its discretion in refusing to allow his attorney
to participate at trial, to cross-examine witnesses, or to object to evidence. The trial court treated
its decision not to allow Christopher’s counsel to participate at trial as a necessary corollary to its
order of default. In this, the trial did not abuse its discretion.
A defaulted party is precluded from participating in the action. C. Rhyne & Assocs. v.
Swanson, 41 Wn. App. 323, 326, 704 P.2d 164 (1985). An attorney representing a defaulted
client can do no more than his client. Here, the trial court considered the prejudice to Christa if it
allowed Christopher to interject his objections and questions to witnesses and to challenge her
evidence without her having had the ability before trial to examine his evidence and the basis of
his objections or questions. The record makes it clear that the trial court properly considered
whether Christopher willfully refused to cooperate with discovery and substantially prejudiced
Christa’s trial preparation and considered alternative, lesser sanctions before defaulting him.
Under these circumstances, it did not abuse its discretion in striking his pleadings and entering an
counsel at trial, the trial court did not abuse its discretion.
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Christopher also argues that the trial court abused its discretion during trial by failing to
“independently consider the issues of whether there was a valid marriage, the character of their
Christopher seems to rely on the general rule that “default judgments are not favored
because ‘[i]t is the policy of the law that controversies be determined on the merits rather than by
default.’” Little v. King, 160 Wn.2d 696, 703, 161 P.3d 345, as amended on denial of
reconsideration (2007) (internal quotation marks omitted) (quoting Griggs v. Averbeck Realty,
Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979)). As such, “‘[j]udges and commissioners must
not be mere passive bystanders, blindly accepting a default judgment presented to it. Our rules
contemplate an active role for the trial court when the amount of a default judgment is
uncertain.’” Little, 160 Wn.2d at 706 (quoting Lenzi v. Redland Ins. Co., 140 Wn.2d 267, 281,
But here, the trial court clearly did not accept a proposed default judgment without
examining the evidence. It held a trial three months after defaulting Christopher and striking his
pleadings. It heard evidence, examined exhibits, and heard argument before rendering its
arguments and at trial following the default. We hold that the trial court exhibited exemplary
judicial restraint and judgment in dealing with Christopher’s recalcitrant and uncooperative
behavior in this dissolution action, both in considering the legal issues and in rendering its
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Christopher further argues that Christa frequently “used invalid methods of serving [him]
with her motions and with court orders.” Br. of Appellant at 25. Moreover, he contends, she
“failed to prove proper service . . . for her motions asking the court for various relief and asking
Our review of the record accords with Christa’s, showing that these “complaints lack
merit because in nearly every instance [Christopher’s] attorney was present at the hearing, signed
the order, and never complained of improper service’” Br. of Resp’t at 17 (internal quotation
marks omitted). Again, under RAP 2.5(a), we generally do not consider arguments raised for the
first time on appeal. Studebaker, 36 Wn. App. at 818. Christopher’s counsel appears to have
objected to improper service on only two occasions. Thus, we do not review other claims of
improper service.
Although courts strictly construe and rigorously enforce statutes governing service of
original process, courts enforce requirements for serving subsequent pleadings, motions, notices,
and other documents far less rigorously. 15 Karl B. Tegland, Washington Practice: Civil
Procedure § 50.1, at 364 (2003). Under CR 5, unless the trial court orders otherwise, service of
pleadings and other papers subsequent to the summons and complaint shall be made on a party’s
10
Christopher also asserts that Christa violated RCW 4.28.080 by engaging in substitute service
because “service could have been made by leaving the documents with a female in her 30s who
claimed to reside there.” Br. of Appellant at 24. Although this statute deals with insufficient
service of process, he only argues she used “invalid methods of serving [him] with her motions
and with court orders.” Br. of Appellant at 25. In any event, he fails to cite to the record to
support his factual assertions.
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attorney, if represented by an attorney. In fact, service on the party in such cases is improper
absent a trial court’s authorization. See CR 5(b)(1). But service on an attorney is ineffective after
the attorney withdraws as attorney of record in accordance with CR 71(a). All motions and other
papers must then be served personally on the party himself or herself. See CR 71(a). And service
is not required “on parties in default for failure to appear except when pleadings assert[] new or
By the time Christopher objected to service of two motions or orders, the trial court had
found him in default and struck his pleadings for failure to abide by the trial court’s orders to
answer interrogatories and appear for deposition. Here, it appears that Christopher’s first
objection regarding insufficient service was with regard to service of an order restraining him
from transferring, removing, or encumbering property. This was part of a temporary order
argued on April 19, 2006. His objection was raised at a hearing on March 9, 2007. 11
The record of the March 9 hearing is quite convoluted and portions are inaudible. It
contains an extended discussion between counsel for both parties and the trial court about many
issues in a random and confused manner. Our review of the entire record leads us to conclude
that:
1. The trial court declared Christopher in default and struck his pleadings on February 16,
2007.
2. His attorney continued to appear and participate throughout the remainder of the case
11
Although RAP 10.3(a)(6) directs parties to make their arguments with “references to relevant
parts of the record,” Christopher failed to direct us to any portion of the record raising his
objections to insufficient service. For that reason, we remain uncertain of his exact objections.
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and his motion to vacate the default was denied. In fact, the only exception to Christopher’s
counsel’s full participation was at trial, when he was not allowed to cross-examine the witnesses
or object to evidence.
3. The trial court did not enter a written temporary restraining order following the April
19, 2006, order until March 9, 2007, when it was entered nunc pro tunc. Therefore, Christopher
is correct that he was not served a copy of the order before he was found in contempt of it.
4. At the conclusion of the March 9, 2007, hearing, the trial court held Christopher in
contempt for encumbering the real property in California, by leasing it after the trial court had
ordered him to vacate the property, and allowing Christa control over its sale. But the trial
court’s March 9, 2007, order allowed Christopher to purge his contempt by ending the
5. The events leading up to the March 9, 2007, order of contempt had no bearing on the
trial court’s decision to default Christopher and strike his pleadings on February 16, 2007. Nor is
it referred to by the trial court in its oral opinion three months later, following trial on the division
of property, maintenance, child support, the parenting plan, and attorney fees.
The second objection Christopher argues relates to a March 23, 2007, hearing where his
counsel argued that the notice for trial was not sent to Christopher, who was unrepresented by
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Rhyne, 41 Wn. App. 323, 325-26 (footnote and citations omitted) (quoting Pedersen, 56 Wn.2d
at 320).
Christopher was not entitled to service of pleadings, including notice for trial setting, after
his pleadings were stricken and he was defaulted.12 And the record amply shows that Christopher
did know the trial date well in advance and that his counsel actually appeared for trial. He fails to
persuade us that he was prejudiced in any manner by the lack of mailed notice of trial setting, even
Christopher argues that “the trial court abused its discretion by acting as a passive
community or separate property.” Br. of Appellant at 40. Christopher points to the following
passage:
The Court finds that the proposed division of property as set forth in
12
Christopher also generally assigns error to Christa’s service by courier, facsimile, and mail. But
he did not timely raise any of these objections or this argument when the motions were argued but
waited until after he was defaulted. We do not, therefore, consider these assignments of error.
Nevertheless, in examining the record in detail, as was necessary here, we found no fault with any
of the service modes, means, or processes employed by Christa in this case.
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Exhibit 1 of [Christa]’s exhibit, the trial notebook, is a fair and equitable division
of the community and separate property of the parties. There’s been no testimony
as to any separate property, so the presumption is it’s all community. So the Court
finds that based on the nature and extent of the community property presented to
me, that that factor has been satisfied by the proposed division by [Christa], which
allocates approximately 1.3 million to each party.
The Court further finds that this was a marriage of approximately ten years.
So I’ve considered that factor as far as the equitable division of property, which is
almost fifty-fifty in this case.
And the Court also has considered the economic circumstances of each
party when it becomes effective, again with a distribution of approximately fifty-
fifty. It appears that [Christa] has been reasonable as far as the proposed
distribution that the Court is accepting.
RP at 257-58.
Although Christopher refers to the findings of the trial court, he does not cite to the
record or any authority demonstrating that the trial court’s findings are not supported by
substantial evidence or how the court abused its discretion. Inasmuch as this was a 10 year
marriage without any evidence of separate property, the court did not abuse its discretion in
Christopher also argues that the trial court abused its discretion in determining their
[t]he trial court further abused its discretion in making findings of fact which did
not rely upon the evidence presented by [Christa] in her testimony, but rather
relied upon statements made by [her] counsel during oral argument. As one
example, for child support purposes, the court made findings of fact regarding
[Christa]’s income based upon a summary presented by counsel that speculated
that [Christopher] could be working and further speculated what [his] income
might be.
Br. of Appellant at 40-41. Moreover, he asserts that the trial court awarded relief greater than
Christa requested.
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No. 36657-6-II
But again, he fails to cite to the record or legal authority to support these claims. An
10.3(a)(4); Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182
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No. 36657-6-II
Christa requests attorney fees and supports her request with statutory and case law
authority. See RCW 26.09.140. She also submitted her financial affidavit before oral argument
“An award of attorney fees and costs may be granted in an appellate court’s discretion
under RCW 26.09.140. Upon a request for fees and costs under RCW 26.09.140, “courts will
consider ‘the parties’ relative ability to pay’ and ‘the arguable merit of the issues raised on
appeal.’” Muhammad, 153 Wn.2d at 807 (quoting In re Marriage of Leslie, 90 Wn. App. 796,
807, 954 P.2d 330 (1998)). RCW 26.09.140 provides that “[u]pon any appeal, the appellate
court may, in its discretion, order a party to pay for the cost to the other party of maintaining the
We conclude that under RAP 18.1 and RCW 26.09.140 Christa is entitled to her attorney
fees and any statutory costs on appeal based on her financial affidavit and the lack of merit of the
13
Christopher also argues that the court abused its discretion by revoking a lis pendens he placed
on property awarded to Christa because RCW 4.28.320 authorized his action. In addition, he
asserts a due process violation and argues that the trial court should not have ordered that a third
party sign real estate documents in his stead. Lastly, he argues that the trial court should have
independently determined whether his marriage was valid. These issues were not properly raised
in his assignments of error and statement of issues on appeal. As such, we do not consider them.
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No. 36657-6-II
issues raised by Christopher. A commissioner of this court will decide the amount of fees and
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is
so ordered.
Houghton, J.
Bridgewater, J.
26