Opinion
No. 36657-6-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 06-3-00342-7, James E. Rulli, J., entered July 20, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Bridgewater, JJ .
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 not address. We affirm and award attorney fees to Christa.
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.
Because they have the same last name, we refer to Christopher and Christa by their first names. In doing so, we mean no disrespect.
FACTS
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.
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 but he has worked successfully in the entertainment industry in California.
Until 2003, Christopher and Christa lived in California; then they purchased a house in 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 she sought and obtained a protection order against him.
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 plan, and determine child support. Clerk's Papers (CP) at 708.
Upon Christopher's subsequent and persistent refusal to answer interrogatories or appear 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 failure to follow the court orders.
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 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 child support to Christa, as well as attorney fees.
Following trial, Christopher attempted to encumber the properties awarded to Christa by 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 .
ANALYSIS
As explained below, the trial court struck Christopher's pleadings. Thus, we do not give weight to arguments that rely on the struck pleadings.
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 are undisputed, we review a trial court's ruling on personal jurisdiction de novo. In re Marriage of Yocum, 73 Wn. App. 699, 702, 870 P.2d 1033 (1994).
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 determine this issue." Smith, 113 Wn. App. at 324.
Finally, "[a] property division made during the dissolution of a marriage will be reversed on appeal only if there is a manifest abuse of discretion." In re Marriage of Muhammad, 153 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 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
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 RCW 4.16.170." 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 quotation marks omitted).
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.)
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, 2006, before the May 16, 2007, trial.
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).
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 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 this assertion. Amended Reply Br. of Appellant at 5.
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 personal jurisdiction fails.
B. Jurisdiction over the Property and Liabilities of the Parties
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.
III. Discovery Sanctions and Default Judgment
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 numerous warnings and after being held in contempt for violating the court's discovery orders.
A. CR 26(i)'s Meet and Confer Requirement
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 first order compelling discovery. Br. of Appellant at 32.
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.)
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.
Christopher cites to " SSCP20" 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 messages to Christopher's attorney in which he made formal CR 26(i) requests. Christopher is 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. Rudolph, 107 Wn. App. at 867.
This is one of the many citations that run afoul of RAP 10.3(a)(6).
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." Amended Reply Br. of Appellant at 13 (internal quotation marks omitted). 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 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 for review in a parental deprivation proceeding, stipulating to a contingent consent judgment, [and] stipulating that the client is mentally ill without a hearing." 94 Wn.2d at 304-05 (citations omitted).
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.
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, and Christopher's claim fails.
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 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 on Christopher's failure to participate in discovery.
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 Wn. App. 320, 321-22, 783 P.2d 1092 (1989).
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." 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 [Christopher] comply with interrogatories and court orders." CP at 518.
In its findings of fact and conclusions of law entered on June 11, 2007, the trial court explained its reasoning for ordering harsh sanctions against Christopher:
The court recognizes that an order of default is a harsh sanction. However, in light of [Christopher's] complete refusal to comply with the court orders requiring him to answer interrogatories, default was an appropriate sanction. [Christopher] had the ability to answer the interrogatories. In fact, by the time the default order was entered, [Christopher] already had several months to answer the interrogatories. [He] has failed to provide this court with any reasonable explanation as to why he has not complied with the court's orders. [His] refusal to answer the discovery requests — in violation of several court orders — was deliberate and willful.
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 discovery requests, [Christa] could not reasonably be expected to prepare for trial in any meaningful manner.
CP at 521. The record supports these facts.
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 requests for production." Br. of Appellant at 37. He argues that
[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 to Christopher's claim on appeal.
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 recited in finding of fact 2.20 that it
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 if he failed to comply with its orders. Despite this warning, [he] still refused to comply with the discovery orders.
CP at 521.
The following timeline shows that Christopher steadfastly refused to participate in 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. Date Action Notice Judge
May 17, 2006 Discovery request; Served on Christopher's attorney answer due June 19, Alison Greene. 2006. June 26, 2006 Inquiry regarding status. Email to attorney Greene (unanswered). July 21, 2006 Inquiry regarding status. Email to attorney Greene (unanswered). August 10, 2006 Inquiry regarding status. Email to attorney Greene (unanswered). September 13, "Order re Motion for Motion served on counsel by Poyfair 2006 CR 37 Relief," courier. Service [of order] Christopher ordered to Accepted by attorney Greene. provide discovery by Agreed order entered. September 21, 2006. October 2, 2006 Order finding Christopher unrepresented, but Rulli Christopher failed to new counsel made no objection to provide discovery lack of actual notice of this order. pursuant to September 13, 2006 order. "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 of Marriage by default." CP at 165. October 13, 2006 Notice of deposition of Served on Christopher by mail. Christopher. November 13, Christopher failed to 2006 appear for deposition. November 22, Hearing on Christa's Attorney Marie Tilden Rulli 2006 motion for contempt. acknowledged receipt of motion and present at hearing.
[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.
CP at 215 (emphasis added).
December 15, Order finding Attorney Tilden appeared at Rulli 2006 Christopher in contempt hearing. of court's May, 17, 2006, September 13, 2006, and October 2, 2006, orders. 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.4. Preclusion of Attorney's Participation at Trial
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 order of default in the dissolution action. In refusing further participation by Christopher's counsel at trial, the trial court did not abuse its discretion.
IV. Failure to Independently Consider Issues at Trial
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 property, income of the parties and other issues." Br. of Appellant at 2.
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, 996 P.2d 603 (2000)).
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 decision. It even entertained argument from Christopher's attorney at numerous motion 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 decision. Christopher's challenge is without merit.
V. Service of Motions and Orders
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 the court to sanction [him]." Br. of Appellant at 26.
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.
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 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 additional claims for relief against them." CR 5(a).
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.
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.
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 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 unauthorized leasehold interest.
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 counsel on February 14, 2007.
[Christopher's Counsel]:. . . . We cited it in for an objection to a trial setting. There is a settlement conference that we're not objecting to, but it's indicated a one-hour trial. And that notice was not sent to my client, which has happened before in these proceedings where he's not notified of entry of orders or filing of documents.
RP at 136. Again, this was after he was declared to be in default.
CR 55 governs entry of default and entry of default judgment. Under the forerunner of CR 55, once a defendant has been properly adjudged to be in default, the defendant "cannot contest the subsequent proceedings and is not entitled to further notice thereof." CR 55 itself is silent on the issue of notice of presentation of a default judgment, and in the absence of a clear indication of intent to change the Pedersen[v. Klinkert, 56 Wn.2d 313, 352 P.2d 1025 (1960)] holding, we will not presume that CR 55 is such an innovation on the common law. Thus, once the court has properly made an entry of default, the defendant is not entitled to notice of the presentation of judgment or findings.
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. 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 had he been entitled to it.
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.
VI. Abuse of Discretion in Dividing Property and Determining Income
Christopher argues that "the trial court abused its discretion by acting as a passive bystander to the presentation of [Christa]'s case, failing to conduct a reasonably inquiry as to 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 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 awarding the parties an equal division of property Christa identified at trial.
Christopher also argues that the trial court abused its discretion in determining their respective incomes. Here, Christopher argues that
[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.
But again, he fails to cite to the record or legal authority to support these claims. An assignment of error unsupported by argument or legal authorities is deemed waived. RAP 10.3(a)(4); Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987). We hold that these assignments of error are waived.
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.
VII. Attorney Fees
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 pursuant to RAP 18.1(c). Christopher does not ask for fees.
"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 appeal and attorney's fees in addition to statutory costs."
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 issues raised by Christopher. A commissioner of this court will decide the amount of fees and costs upon Christa's compliance with RAP 18.1.
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. and BRIDGEWATER, J., concur.