Opinion
No. 52173-0-I.
Filed: February 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-3-01878-9. Judgment or order under review. Date filed: 03/13/2003. Judge signing: Hon. Mary I Yu.
Counsel for Appellant(s), Steven Jeffrey Fields, Attorney at Law, 18222 104th Ave NE Ste 101, Bothell, WA 98011-3491.
Counsel for Respondent(s), William A. Buchanan, Attorney at Law, 8195 166th Ave NE Ste 204, Redmond, WA 98052-3945.
During the dissolution of his marriage, Ronald Bradshaw was granted a default order. The default decree awarded more debt to his estranged wife, Cora, and more property to Ronald than he requested in his petition. Because relief awarded may not exceed relief requested, we reverse the trial court's denial of Cora Bradshaw's motion to vacate the default decree.
I
Ronald filed a petition for dissolution of marriage in early 2002. As part of the dissolution proceedings, a superior court commissioner issued a temporary order directing Ronald to pay Cora $1,000 per month for two months for spousal maintenance.
Later, Ronald filed a motion and declaration for default setting the hearing date for December 2, 2002. He mailed notice of the motion to Cora on November 20, 2002. Cora did not respond to the motion for default. The court entered the order of default on December 2, 2002.
A superior court commissioner signed the decree of dissolution on December 17, 2002. The default decree distributed property and debt differently than had been proposed in the original petition. Cora filed a motion to vacate the order of default, but the court denied the motion. She appeals.
II
We review a trial court's decision on a motion to vacate a default judgment under CR 60(b) for an abuse of discretion. The court abuses its discretion by basing its decision upon untenable grounds or untenable reasons. We more readily find that a court has abused its discretion when it denies a motion to set aside a default than when it grants the motion and permits trial on the merits to ensue.
In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990) (citing In re Adamec, 100 Wn.2d 166, 173, 667 P.2d 1085 (1983)).
Tang, 57 Wn. App. at 653 (citing In re Schuoler 106 Wn.2d 500, 512, 723 P.2d 1103 (1986)).
White v. Holm, 73 Wn.2d 348, 351-52, 438 P.2d 581 (1968).
Cora argues that the trial court erred by not granting her motion to vacate the order of default because the relief granted exceeds the relief Ronald prayed for in his petition. In Washington, a party to a lawsuit may rely on the relief requested in pleadings and voluntarily default. In choosing to default, a party may expect that the relief granted will not exceed or substantially differ from that sought in the complaint. Civil Rule 54(c) provides that `[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.' Granting relief beyond that sought in the complaint without notice and without an opportunity to be heard denies the defaulting party procedural due process. In In re Marriage of Hardt, the dissolution decree required the husband to pay $50 per month in child support even though the petition expressly had omitted a child support provision. Although five years had passed when the husband challenged the decree, the trial court granted his motion to vacate. Division Three of this court upheld the trial court's decision because the decree provided greater relief than the petition request. Cora specifies five differences between the petition and the decree:
In re Marriage of Thompson, 32 Wn. App. 179, 183, 646 P.2d 163 (1982).
Thompson, 32 Wn. App. at 183 (citing Sceva Steel Bldgs., Inc. v. Weitz, 66 Wn.2d 260, 401 P.2d 980 (1965)).
CR 54(c).
In re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989).
39 Wn. App. 493, 693 P.2d 1386 (1985).
Hardt, 39 Wn. App. at 495.
Hardt, 39 Wn. App. at 494-95.
Hardt, 39 Wn. App. at 496.
The decree awards Cora $6,000 in cash whereas the petition stated $12,000;
The decree orders Cora to pay $4,600 in credit card debt whereas the petition stated $1,600;
The decree orders Cora to pay `[a]ny other obligation that is secured by a pledge of property that was awarded to her by this Decree of Dissolution' and to pay other obligations incurred since separation whereas the petition only required Cora to pay her medical bills;
The decree awards Ronald all personal property in his possession as of the date of the entry of the decree whereas the petition sought to award Ronald all personal property in his possession as of the date of separation; and
The decree awards Ronald the 1994 Ford Taurus whereas the petition awarded it to Cora.
Ronald concedes that the relief granted in the decree does not match the relief prayed for in the petition, but he argues that Cora received notice that he would seek a different division of property than the one proposed in the petition. He further argues that the final division of property is fair and equitable and, moreover, his award in the decree does not exceed the award he requested in the petition.
Ronald claims that a settlement proposal letter he sent to Cora on May 7, 2002 gave her notice that he would seek a different division of property from the division proposed in the petition. We do not accept the notion that a proposal to resolve outstanding issues is the functional equivalent of amended pleadings or formal notice necessary to comport with due process.
Ronald also argues that the final decree does not need to exactly match the petition, and that his award in the final decree did not exceed the award proposed in the petition. He explains that the final decree provides Cora with a greater net award because: a) he gave her a significant amount of money through payments he made under provisions of the temporary order and voluntary payments that were not anticipated by the petition; and b) some of the differences between the petition and the decree gave her more rather than less.
Ronald offers no authority to support his assertion that the court should consider voluntary and court-ordered payments in deciding whether the decree sufficiently matches the proposal in the petition. He cites to In re Marriage of Campbell and In re Marriage of Powell to argue that the petition need not match the decree exactly. Although these opinions do suggest that a published notice need not match the decree exactly, they are not helpful to Ronald's argument.
37 Wn. App. 840, 683 P.2d 604 (1984).
84 Wn. App. 432, 927 P.2d 1154 (1996).
Both cases are distinguishable from the Bradshaws' situation because unlike the summonses by publication in Campbell and Powell, Ronald's award in the final decree is not governed by RCW 4.28.100. Moreover, unlike the general terminology in those summonses, Ronald's petition was quite specific. The courts in Campbell and Powell confronted the question of whether general terminology in a published summons suffices to notify a defaulting party that the final decree would make specific awards to the petitioner. We, however, must consider whether the defaulting party is denied due process rights because the specific distribution listed in the petition served on a respondent does not match the distribution in the decree. Campbell and Powell are inapposite.
Campbell, 37 Wn. App. at 842; Powell, 84 Wn. App. at 436.
Campbell, 37 Wn. App. at 842; Powell, 84 Wn. App. at 437.
Campbell, 37 Wn. App. at 844-45; Powell, 84 Wn. App. 437-38.
If a complaining party decides he deserves additional relief after he files his petition, `the defendant is entitled to have notice given to him and an opportunity to be heard on the merits thereof; otherwise he is denied procedural due process of law. . . .' To change the division of property and debt, Ronald needed to give Cora sufficient notice and an opportunity to be heard. He did not.
State ex rel. Adams v. Superior Court for Pierce County, 36 Wn.2d 868, 872, 220 P.2d 1081 (1950).
As in Hardt, the decree provided greater relief than the petition requested. Therefore, we reverse and order the trial court to grant Cora's motion to vacate.
Cora also argues that she did not receive timely notice of the motion for default, or she merely committed excusable neglect. Because we already have decided the motion to vacate will be granted, we do not reach these issues.
We note that there is a potential conflict between the notice requirement under CR 5(b)(2)(A) and the requirement under KCLR 7(b)(3)(A), but the issue has not been fully briefed in this appeal.
Next, Cora asks us to reverse the trial court's decision to not award attorney fees. Under RCW 26.09.140, a court may award attorney fees in actions dissolving marriages after balancing `the needs of the spouse seeking the fees against the ability of the other spouse to pay.' In dissolution proceedings, the prevailing party standard does not apply. A challenge to a dissolution decree constitutes a continuation of the original dissolution under chapter 26.09 RCW and thus, a trial court has the authority to award attorney fees under RCW 26.09.140. We only reverse a trial court's decision to not award attorney fees under RCW 26.09.140 if the court's decision is untenable or manifestly unreasonable. The party challenging the court's decision bears the burden of proving the court `exercised this discretion in a way that was clearly untenable or manifestly unreasonable.'
RCW 26.09.140; In re Marriage of Knight, 75 Wn. App. 721, 729, 800 P.2d 71 (1994).
In re Marriage of Wilson, 117 Wn. App. 40, 51, 68 P.3d 1121 (2003).
Knight, 75 Wn. App. at 729 (citing In re Marriage of Parks, 48 Wn. App. 166, 172, 737 P.2d 1316 (1987)).
In re Custody of Salerno, 66 Wn. App. 923, 926, 833 P.2d 470 (1992).
Knight, 75 Wn. App. at 729 (citing Abel v. Abel, 47 Wn.2d 816, 819, 289 P.2d 724 (1955)).
Cora also requests attorney fees on appeal under RAP 18.1 and RCW 26.09.140. Under RCW 26.09.140, `the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs.' Although Ronald has a monthly income and Cora lists no income because she is unemployed, each party faces monthly expenses almost equal or exceeding monthly income. Neither party appears particularly well-situated to pay the costs and attorney fees for this action, therefore, the trial court's decision is not untenable and we do not reverse it. For the same reasons, we do not award attorney fees on appeal.
RCW 26.09.140; Knight, 75 Wn. App. at 732.
Finally, Cora argues that the trial court should have imposed CR 11 sanctions against Ronald's counsel. We review a trial court's refusal to impose CR 11 sanctions for abuse of discretion. Because Cora presents no evidence that the trial court abused its discretion, we affirm the trial court's decision.
Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 141, 64 P.3d 691, rev. denied, 150 Wn.2d 1016 (2003).
REVERSED.
APPELWICK, and AGID, J., concur.