Opinion
No. 27237-1-III.
September 17, 2009.
Appeal from the Superior Court, Spokane County, No. 05-3-02034-1, Salvatore F. Cozza, J., entered June 6, 2008.
Reversed and remanded by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
Dallas G. Alcorn (formerly Fancy) appeals the denial of her motion to vacate orders that modified her parenting plan with her former husband Timothy Dana Fancy. She asserts that she did not receive notice of the trial date, while Mr. Fancy was provided notice. We conclude that the court's failure to notify Ms. Alcorn of the trial date is an irregularity under CR 60(b)(1) such that the superior court abused its discretion when it denied Ms. Alcorn's motion to vacate. We therefore reverse and remand to vacate the orders modifying the parenting plan and for further proceedings. We deny Mr. Fancy's request for attorney fees.
Ms. Alcorn and Mr. Fancy divorced on February 24, 2006. They have one child in common, Taylor Fancy, who was then almost three years old. The parenting plan placed primary custody of the child with Ms. Alcorn.
On March 16, 2007, Mr. Fancy filed a summons and a petition to modify the parenting plan, which proposed changing the primary custody to him. After a contested hearing on June 12, a court commissioner found adequate cause to hear Mr. Fancy's petition. On August 17, the court entered a domestic case schedule order that set the trial for January 7, 2008 and a pretrial conference for December 20, 2007. This order was mailed to both parties' attorneys by the court.
On August 30, 2007, Ms. Alcorn's attorney filed a notice of intent to withdraw and a declaration that the attorney had served her client with said notice. The notice did not set forth the trial date or Ms. Alcorn's last known mailing address. See CR 71(c)(1). The trial did not occur on January 7, 2008, although the reason is not clear from the record. On March 13, the trial court subsequently issued an amended case schedule order setting trial for May 19.
On May 19, the court entered a parenting plan, order on modification, and order of child support. Ms. Alcorn did not appear.
Upon having the final papers served on her, she immediately moved to vacate the orders, pro se, on May 20. She later hired counsel, who prepared a declaration for her and represented her at the hearing. The trial court denied the motion to vacate.
This appeal follows. Ms. Alcorn contends that the court abused its discretion by denying her motion to vacate the orders that arose from a hearing for which she received no notice.
A court may relieve a party from a final judgment or order in the case of mistake, inadvertence, surprise, excusable neglect, or irregularity. CR 60(b)(1). An order on a motion to vacate is reviewed for abuse of discretion. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 (1979). Nonetheless, an appellate court may more readily find an abuse of discretion when the court's determination results in the denial of a trial on the merits. White v. Holm, 73 Wn.2d 348, 351-52, 438 P.2d 581 (1968). Mr. Fancy asserts that evidence was taken and a decision was made on the merits. Nothing in the record supports that contention.
Moreover, under the civil rules, "Either party, after the notice of trial, whether given by himself or the adverse party, may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise directs, may proceed with his case, and take a dismissal of the action, or a verdict or judgment, as the case may require." CR 40(a)(5) (emphasis added). Because Ms. Alcorn was not provided notice of trial, any hearing that proceeded in her absence was contrary to CR 40(a)(5).
Irregularities pursuant to CR 60(b)(1) occur when there is a failure to adhere to some prescribed rule or mode of proceeding, such as when a procedural matter that is necessary for the orderly conduct of trial is omitted or done at an unseasonable time or in an improper manner.
Mosbrucker v. Greenfield Implement, Inc., 54 Wn. App. 647, 652, 774 P.2d 1267 (1989).
The trial court addressed excusable neglect in its oral ruling. A claim of irregularity is not controlled by the factors applicable to cases involving excusable neglect. Id.
Ms. Alcorn argues that the failure to provide her notice of the trial may be attributable to her former attorney's faulty notice of intent to withdraw. CR 71(c)(1) permits retained counsel in a civil case to withdraw upon notice to the parties, which notice must include any scheduled trial date and the last known address of the person represented by the withdrawing attorney. Mr. Fancy concedes that the withdrawal "did not strictly comply with CR 71" in these regards. Br. of Resp't at 6. The notice did not set forth the trial date or Ms. Alcorn's address.
A failure to give notice of proceedings when notice is required is an irregularity under CR 60(b)(1) subject to vacation of orders arising out of the proceedings. Gage v. Boeing Co., 55 Wn. App. 157, 164, 776 P.2d 991 (1989); C.S. Barlow Sons v. H. B. Lumber Co., 153 Wash. 565, 280 P. 88 (1929); Kirschner v. Worden Orchard Corp., 48 Wn. App. 506, 509, 739 P.2d 119 (1987); cf. Haller v. Wallis, 89 Wn.2d 539, 546, 573 P.2d 1302 (1978) (affirming the trial court's decision not to vacate an order under CR 60(b) where there was no evidence of fraud or collusion and none of the irregularities charged was attributable to the court or the party resisting the motion). Such is the case here.
Mr. Fancy argues that RCW 4.44.020 requires that a case, once noted for trial, requires no further notice because it "shall remain upon the docket from session to session or from law day to law day until final disposition or stricken off by the court." The record is not consistent with Mr. Fancy's implication that this case was on a trailing docket.
Even if Ms. Alcorn had notice of the January 7, 2008 trial date, the trial court did not attempt to provide her notice of the May 19, 2008 trial date. Further, the court provided Mr. Fancy notice of the new trial date and it did not provide the same to Ms. Alcorn. This is certainly an irregularity.
We reverse and remand to vacate the orders entered in Ms. Alcorn's absence. Mr. Fancy's request for attorney fees is denied.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and KORSMO, JJ., concur.