In Re The Marriage Of: Lucinda Carpenter, V Bradley Carpenter ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON -Her
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In the Matter of the Marriage of No. 72830-0-1 •20 a-rj
LUCINDA B. CARPENTER, ro -176 Wn. App. 185, 195, 312 P.3d 976 (2013).
Under CR 55(a)(3), a party who "has appeared in the action for any purpose" is
entitled to notice of another party's motion for default. CR 55(a) states, in pertinent part:
(1) Motion. When a party against whom a judgment for affirmative
relief is sought has failed to appear, plead, or otherwise defend as provided
by these rules and that fact is made to appear by motion and affidavit, a
motion for default may be made.
(3) Notice. Any party who has appeared in the action for any
purpose shall be served with a written notice of motion for default and the
supporting affidavit at least 5 days before the hearing on the motion. Any
party who has not appeared before the motion for default and supporting
affidavit are filed is not entitled to a notice of the motion, except as provided
in rule 55(f)(2)(A).
"A defendant appears in an action when he or she answers, demurs, makes any
application for an order therein, or gives the plaintiff written notice of his or her
appearance." RCW 4.28.210.
Bradley argues that the acceptance of service of process is the equivalent of a
notice of appearance for purposes of CR 55(a)(3). We disagree.
Acceptance of service of process, without more, does not constitute an
appearance. To appear by filing a notice of appearance, the notice must "be in writing,
shall be signed by the defendant or his attorney, and shall be served upon the person
whose name is signed on the summons." CR 4(a)(3); see In re Estate of Stevens, 94
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Wn. App. 20, 32, 971 P.2d 58 (1999) (defendant did not appear by "accepting] service
of the petition, summons, and notice of hearing" and then choosing "to do nothing").
Bradley's reliance on Southerlin v. Automotive Electronics Corp., 773 P.2d 599(Colo. App. 1988), is misplaced. In Southerlin, the parties entered into "a stipulation in
open court" to resolve objections to a foreclosure. Southerlin, 773 P.2d at 600. The
plaintiffs later filed a lawsuit against the defendants and attached the stipulation to the
complaint. Southerlin, 773 P.2d at 600. The defendants' attorney "signed a written
acceptance of service, indicating that he was doing so 'as the attorney' for defendants."
Southerlin, 773 P.2d at 600. After accepting service of process, the defendants'
attorney and the plaintiffs' attorney entered into a "specific agreement extending the
time for defendants to file a responsive pleading." Southerlin, 773 P.2d at 602. The
Colorado Court of Appeals held that defendants were entitled to notice of the motion for
default "[i]n light of all of these circumstances." Southerlin, 773 P.2d at 602.
Here, there is no dispute that Bradley received the summons and the petition for
legal separation on June 14. There is also no dispute that Bradley did not file a notice
of appearance until after the court entered the decree on September 30.
The summons clearly informed Bradley that the court could enter an order of
default if he did not file a written response within 20 days of service, and that he was
entitled to notice before entry of an order of default only if he served a notice of
appearance on Lucinda. The summons states, in pertinent part:
If you do not serve your written response within 20 days . . . after the date
this summons was served on you, . . . the Court may enter an order of
default against you, and the Court may, without further notice to you, enter
a decree and approve or provide for the relief requested in the petition. . . .
If you serve a notice of appearance on the undersigned person, you are
entitled to notice before an order of default or a decree may be entered.
No. 72830-0-1/7
Bradley admits he met with an attorney about the petition in June but chose not
to hire an attorney until "late September," after entry of the order of default. Because
Bradley did not appear in the legal separation proceeding, he was not entitled to notice
of the motion for default.
CR 54(c)
Bradley also contends the court erred in granting relief that exceeds or differs
from the relief requested in the petition for legal separation.
Under CR 54(c), "[a] judgment by default shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment." "To the extent a default
judgment exceeds relief requested in the complaint, that portion of the judgment is
void." In re Marriage of Leslie, 112 Wn.2d 612, 618, 772 P.2d 1013(1989).
Here, the allocation of assets and liabilities does not exceed or differ from the
relief Lucinda requested. The petition for legal separation specifically requested a "fair
and equitable division of all the property" and an award of "attorney fees, other
professional fees and costs."
Allocation of Assets and Liabilities
In the alternative, Bradley contends the court abused its discretion in allocating
the assets and liabilities.
We review a trial court's division of marital property for a manifest abuse of
discretion. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005).
" 'A trial court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons.'" Muhammad, 153 Wn.2d at 803 (quoting in
re Marriage of Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). We review a
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trial court's factual findings for substantial evidence. In re Marriage of Olson, 69 Wn.
App. 621, 626, 850 P.2d 527 (1993). Substantial evidence is the quantum of evidence
sufficient to persuade a rational fair-minded person the premise is true. Olson, 69 Wn.
App. at 626. In determining whether substantial evidence supports the court's findings,
we review the record "in the light most favorable to the party in whose favor the findings
were entered." In re Marriage of Gillespie, 89 Wn. App. 390, 404, 948 P.2d 1338(1997). Where, as here, the court does not enter explicit findings as to the value of
property allocated, "the appellate court may look to the record to determine the value of
the assets." In re Marriage of Greene, 97 Wn. App. 708, 712, 986 P.2d 144 (1999).
Bradley asserts the court abused its discretion in allocating assets and liabilities
because neither the decree of legal separation nor the findings of fact and conclusions
of law state the value of the assets or the amount of the "obligations related to Treos
Cafe." Bradley also asserts substantial evidence does not support the valuation of the
other liabilities.
But the record establishes Bradley did not challenge Lucinda's valuation of the
retirement accounts, the vehicles, the Whistler time-share property, or the debt related
to Treos Cafe.3 See RAP 2.5(a) ("The appellate court may refuse to review any claim of
error which was not raised in the trial court.").
Below, Bradley challenged the valuation of only the family home. The record
supports the court's valuation of the family home. Lucinda submitted a declaration
stating the house has "a value of approximately $475,000.00 subject to a debt of
3 Lucinda testified her retirement account has "a balance of approximately $19,0000.00" and
Bradley's retirement account "has a value that I believe is in excess of $100,000.00." Lucinda testified
that her car has "substantially negative equity" and Bradley's car "has a value approximately equal to its
debt." Lucinda also testified that "the Treos Cafe that [Bradley] owns is worth . . . equal to or greater than
the debt he is assuming."
No. 72830-0-1/9
$269,000.00 which, after sales costs, would net about $155,000.00." In response,
Bradley claimed the outstanding debt on the first mortgage is "approximately
$271,000.00," the debt on the second mortgage is "around $150,000.00," and the value
of the home is "approximately $570,000.00." In his second declaration, Bradley
asserted the home "is listed by Zillow at $538,727.00." Bradley's estimate of the net
equity value of the home does not differ substantially from Lucinda's $155,000.00
valuation. Bradley testified that "after the first and second mortgage the house has
between $140,000.00 and $150,000.00 in equity at this time." Viewed in the light most
favorable to Lucinda, substantial evidence in the record supports the court's valuation of
the family home. See Gillespie, 89 Wn. App. at 404.
Bradley also claims the allocation of assets and liabilities is not just and
equitable. In a legal separation proceeding, the court must "make such disposition of
the property and the liabilities of the parties, either community or separate, as shall
appear just and equitable." RCW 26.09.080. The court must consider a number of
factors, including the "economic circumstances of each spouse or domestic partner at
the time the division of property is to become effective." RCW 26.09.080(4).
The court's "paramount concern" in allocating assets and liabilities is "the
economic condition in which the decree leaves the parties." Gillespie, 89 Wn. App. at
399. Because the trial court is in "the best position to assess the assets and liabilities of
the parties," it has "broad discretion" to determine what is just and equitable under the
circumstances. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).
Bradley relies on his assertion of the relative income of the parties to argue the
allocation of assets and liabilities is not just and equitable. But the 2012 income tax
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return Bradley submitted shows he received far more in retirement account distributions
than Lucinda's gross earnings. Substantial evidence supports the valuation and
allocation of the assets and liabilities.
Bradley also contends the court erred in awarding Lucinda attorney fees for
responding to his motion to vacate the decree of legal separation but provides no
citation to authority in support of his argument. See RAP 10.3(a)(6) (Appellant's brief
must contain "argument in support of the issues presented for review, together with
citations to legal authority."); Regan v. McLachlan, 163 Wn. App. 171, 178, 257 P.3d
1122 (2011) ("We will not address issues raised without proper citation to legal
authority.").
We affirm entry of the decree of legal separation.4
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WE CONCUR:
)Jy/_ ( ^o^~ , >S.J > /^f"r-, 148 Wn. App. 887, 906, 201 P.3d 1056 (2009); In re Marriage of
Mattson. 95 Wn. App. 592, 605-06, 976 P.2d 157 (1999).
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