In Re: Andrea Z. Jolles, And Mark P. Cavener

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON ^
In the Matter of the Marriage of No. 70617-9-1
ANDREA Z. JOLLES,
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Respondent, !!?•"'*
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and UNPUBLISHED OPINION
MARK P. CAVENER,
Appellant. FILED: June 30, 2014
Schindler, J. — Mark P. Cavener repeatedly failed to file a response to Andrea
Z. Jolles' petition to modify the parenting plan and child support order. A court
commissioner entered an order of default. The superior court denied Cavener's motion
to vacate the default under CR 60(b). Because Cavener does not demonstrate a
conclusive or strong defense to the petition or the other factors under CR 60(b), we
affirm.
FACTS
Mark P. Cavener and Andrea Z. Jolles married in 2001, had a child together, and
divorced in 2003. The parenting plan provided that L.C. would live with Jolles
approximately 55 percent of the time and with Cavener the remainder of the time.
In August 2010, Jolles filed a petition for an order of protection. Jolles alleged
that Cavener had been violent and abusive during the marriage and that she feared for
No. 70617-9-1/2
her safety due to his recent "escalating anger" and violence. Jolles described specific
incidents where Cavener spit in her face when dropping off L.C, threw a "heavy brass
candlestick" at her while he was holding 4-month-old L.C, threw a chair across the
bedroom where L.C. was sleeping, grabbed Jolles' wrist and twisted it until he bruised
her arm, pushed and intimidated her, and forcibly took the phone from her and ripped
the cord out of the wall. Jolles alleged the most recent incident occurred in July 2010
when Jolles' father attempted to serve documents on Cavener in the courthouse.
Cavener allegedly grabbed Jolles' father, pressed him against a wall, and threatened
him. Jolles also alleged that Cavener had been making threatening phone calls and
sending her "menacing texts" and "angry accusing emails."
On August 30, 2010, the court entered the first of a series of temporary orders of
protection.
In November 2010, Debra Hunter of King County Superior Court Family Court
Services (FCS) conducted a domestic violence assessment. Hunter concluded that the
protection order should continue and should include L.C. Hunter recommended that
Cavener have limited residential time with L.C. until he received six months of domestic
violence treatment.1
Following a contested hearing on December 20, 2010, the court entered a one-
year domestic violence protection order. The order relied in part on Hunter's domestic
violence assessment and required Cavener to obtain domestic violence treatment.
Cavener filed a motion for revision. The court denied the motion.
1 Cavener provided only 2 pages of Hunter's 14-page report for purposes of this appeal.
2
No. 70617-9-1/3
In November 2011, Jolles filed a petition to renew the domestic violence
protection order. In her declaration in support, Jolles alleged, among other things, that
Cavener had not received domestic violence treatment as required by the prior order of
protection.
Cavener testified at the January 2012 hearing on the motion to renew the
protection order. The court entered a protection order requiring supervised visitation
with L.C. but allowed unsupervised visitation once Cavener completed domestic
violence treatment. The order stated that Jolles could request modification of the
parenting plan if Cavener failed to complete court-ordered treatment or counseling.
Cavener moved to revise the order but the court denied the motion. Cavener then filed
an appeal in this court. We dismissed the appeal for failure to file a designation of
clerk's papers and a statement of arrangements.
On January 13, 2012, Jolles filed a petition to modify the parenting plan and child
support. On February 9, Cavener appeared at the hearing on Jolles' petition but
claimed he did not receive service of process. The court continued the hearing.
On February 15, Jolles moved for default, arguing that Cavener had failed to file
a response to her petition. The court denied Jolles' motion.
On March 21, 2012, Jolles served Cavener again. The return of service indicates
that on March 21, Cavener received the summons, petition for modification, case
schedule, and proposed orders.
On April 12, Jolles sent a letter to Cavener requesting a response to her petition
and cooperation in filing a confirmation of issues.
No. 70617-9-1/4
On May 11, 2012, Jolles again filed a motion for an order of default for failure to
file a response to her petition. Jolles also filed a notice of hearing for a determination of
adequate cause to modify the parenting plan. A hearing was set for May 31. Jolles
filed a declaration of mailing indicating that she mailed Cavener all pleadings and
proposed orders related to the motion for a default order and the adequate cause
hearing on May 10. The record includes a May 12, 2012 delivery confirmation from the
postal service.
On May 24, 2012, Cavener filed a pro se motion to dismiss the action due to lack
of personal jurisdiction, improper service, and improper venue.
At the May 31 hearing on adequate cause, a court commissioner considered
Cavener's motion to dismiss. Jolles alleges, and Cavener does not dispute, that
Cavener told the commissioner he contested only service of the motion for adequate
cause, not service of process as to Jolles' petition. Consistent with Jolles' allegation,
the commissioner ruled that "service of process is required for original process only.
Therefore, service is not a legal issue. Respondent was served." The clerk's minutes
state that the court then continued the hearing to June 14 "to allow [Cavener] to
respond" to Jolles' petition. The order states that "responding party's documents shall
be delivered to the moving party not later than 12:00[ ]noon on June 8, 2012."
On June 1, 2012, Jolles appeared at a status conference hearing. Cavener did
not appear. The court continued the "adequate cause deadline" to August 13.
On June 14, 2012, the court commissioner entered an order of default. The
order states that Cavener received notice of the hearing and "was given the opportunity
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to respond. He failed to do so."2 The court entered orders modifying the parenting plan
and child support. Although the final amended parenting plan is not in the record before
this court, the record indicates that the parenting plan imposed RCW 26.09.191
restrictions, including supervised visitation, due to Cavener's history of domestic
violence. The order granting modification states, in pertinent part:
A Domestic Violence Order for Protection [(DVPO)] was entered in
December, 2010 finding that the Father presented a risk of imminent harm
to the Mother and child. A Risk Assessment was conducted . . . finding
that the Father presented risk to the child and recommending domestic
violence batterer's treatment. Subsequent to the entry of the DVPO, the
Respondent/Father participated in an intake with domestic violence
treatment program Anger Treatment Control Treatment & Therapies
deemed the Father not amenable to treatment and refused to admit him
into their program. The Father is presently an untreated batterer who
presents a substantial risk of harm to the Mother and child. Additional
facts are set forth in the Mother's declaration . . . which are incorporated
as if set forth fully herein.
The Father presents a risk of imminent harm to the child. The child's
contact with the Father should be suspended until the Father has
completed state certified domestic violence treatment and DV Dad's at
Wellspring Family Services.
On April 29, 2013, Cavener filed a motion to vacate the order of default under CR
60(b). Cavener argued that the order "was unwarranted, punitive, excessive, and the
likely result [of] bias on the part of the court." Cavener claimed he was denied due
process prior to the default and challenged the prior protection orders and the
restrictions in the final parenting plan. With respect to the restrictions, Cavener argued
2 Under CR 55(a)(1), a court may enter a default when a defendant "has failed to appear, plead,
or otherwise defend as provided by these rules."
No. 70617-9-1/6
they were entered "for no good cause," without the input of a guardian ad litem, and
without adequately considering the best interests of the child.
At the hearing on the motion to vacate, Cavener's attorney conceded Cavener
did not file a response to the petition but argued entering an order of default restricting
his parental rights was a "gross overreaction." The attorney noted that Cavener had
appeared at numerous hearings and that the court made no findings supporting
restrictions under RCW 26.09.191. Jolles' attorney countered that the court repeatedly
ordered Cavener to respond to the petition but he failed to do so:
This was a process that started in January, and [Cavener] was not
defaulted until June. And there were multiple court hearings in
between. . . . [N]o reasonable person would go six months and go to three
court hearings and continually refuse to enter pleadings and file the
correct documents and then wonder why the case was dismissed.
The court denied the motion to vacate. The court acknowledged that the law
disfavors default judgments, that a motion to vacate a default is equitable in nature, and
that the issues in the present case involved rights that are constitutional in nature.
Nonetheless, as the court pointed out, a party moving to vacate a default judgment must
show substantial evidence supporting a prima facie defense to the claims asserted, the
reason for their failure to timely appear or respond, their diligence following notice of the
default, and the effect of vacating the judgment on the opposing party. The court
concluded Cavener failed to demonstrate a prima facie defense, presented no excuse
for his failure to respond to the petition, and was not diligent filing the motion to vacate
the default. Cavener appeals.
No. 70617-9-1/7
ANALYSIS
The sole issue on appeal is whether the superior court abused its discretion in
denying Cavener's motion to vacate the order of default under CR 60(b). Default
judgments are "generally disfavored in Washington based on an overriding policy which
prefers that parties resolve their disputes on the merits." Showalter v. Wild Oats, 124
Wash. App. 506, 510, 101 P.3d 867 (2004). But courts "also value an organized,
responsive, and responsible judicial system where litigants acknowledge the jurisdiction
of the court to decide their cases and comply with court rules." Little v. King, 160 Wash. 2d
696, 703, 161 P.3d 345 (2007). A court "must balance the requirement that each party
follow procedural rules with a party's interest in a trial on the merits." Showalter. 124
Wash. App. at 510. Review of a decision on a motion to vacate is limited to the trial
court's decision, not the underlying order that the party seeks to vacate. Biurstrom v.
Campbell. 27 Wash. App. 449, 450-51, 618 P.2d 533 (1980). The court's decision will be
disturbed only if it abused its discretion. Akhavuz v. Moody, 178 Wash. App. 526, 532,
315 P.3d 572 (2013).
In this case, Cavener moved to vacate the default order under CR 60(b).
Specifically, Cavener sought to vacate the order on the grounds of "[mjistake,
inadvertence, surprise, excusable neglect or irregularity," CR 60(b)(1), or "[a]ny other
reason justifying relief from the operation of the judgment," CR 60(b)(11). The parties
agree that when a motion to vacate is sought on these grounds, the moving party must
demonstrate (1) there is substantial evidence to support a prima facie defense; (2) the
failure to timely appear or respond was occasioned by mistake, inadvertence, surprise,
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or excusable neglect; (3) the moving party acted with due diligence after notice of the
default; and (4) the opposing party will not suffer substantial hardship ifthe trial court
vacates the default. See, e^, Little. 160 Wash. 2d at 703-07 (applying the four factors
when motion to vacate was brought pursuant to CR 60(b)(1)); Topliff v. Chicago Ins.
Co.. 130 Wash. App. 301, 304-08, 122 P.3d 922 (2005) (applying factors when motion to
vacate was brought pursuant to CR 60(b)(11)). Cavener contends the superior court
misapplied these factors. We disagree.
The first two factors are the "primary" factors. Little. 160 Wash. 2d at 704. When
evaluating the first factor, we view the evidence in the light most favorable to the moving
party. Pfaff v. State Farm Mut. Auto. Ins. Co.. 103 Wash. App. 829, 835, 14 P.3d 837
(2000). If the moving party is able to demonstrate a strong or virtually conclusive
defense, courts will generally spend little time inquiring into the reasons for the default.
Akhavuz, 178 Wash. App. at 533. If, on the other hand, the moving party is unable to
show a strong defense, the reasons for default, the timeliness of the motion to vacate,
and the prejudice to the opposing party will be more carefully scrutinized. Akhavuz. 178
Wash. App. at 533.
The superior court concluded that Cavener did not demonstrate a prima facie
defense to the claims underlying the orders entered by default. In its oral ruling, the
court noted that the 2012 renewal of the protection order meant that Cavener had failed
to carry his burden of showing "why there isn't a substantial likelihood of continuing
behavior warranting a domestic violence restraining order." The court's written decision
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states, in pertinent part:
Respondent's counsel has presented a notebook of materials going back
several years to support the claim that it was error for King County
Superior Court Commissioner Meg Sassaman to include the parties' child
in a Domestic Violence (DV) Protection Order entered in December of
2010. That order was not appealed or changed on appeal (a notice of
appeal was filed but not acted on by the Respondent) and was not
changed on father's Motion for Revision. That Protection Order was
renewed in January of 2012.
Nevertheless, Cavener contends there is "no question [he] could have mounted a
spirited and credible defense" against the petition for modification of the parenting plan,
and "could have certainly counted on a trial court's discretionary powers to determine
that the evidence did not warrant his being deprived of immediate unsupervised contact
and extensive time with his child even if [RCW 26.09]. 191 factors were present."3 We
disagree.
Restrictions in parenting plans under RCW 26.09.191 are mandatory if the court
finds "a history of acts of domestic violence as defined in RCW 26.50.010(1)." RCW
26.09.191 (2)(a)(iii).4 Here, the undisputed record shows that the domestic violence
protection order entered in 2010 found that Cavener "committed domestic violence as
defined in RCW 26.50.010" and presented a risk of harm to Jolles and L.C. That order
was based on a 14-page FCS domestic violence assessment. Only 2 of the 14 pages
are a part of this record.5 Furthermore, as noted above, the court renewed the
3 Emphasis in original.
4 RCW 26.50.010(1) defines "domestic violence" as the following conduct committed against a
family or household member: (a) a physical assault, (b) a sexual assault, or (c) stalking as defined in
RCW9A.46.110.
5 It is the appellant's burden to provide a sufficient record to review the issues raised on appeal.
Story v. Shelter Bay Co.. 52 Wash. App. 334, 345, 760 P.2d 368 (1988).
No. 70617-9-1/10
protection order following an evidentiary hearing in 2012. We conclude Cavener has
not demonstrated a conclusive or strong defense to the claims underlying the
challenged orders. Accordingly, the other factors for evaluating a motion to vacate a
default order must be scrutinized.
The second factor, i.e., the reason for Cavener's default, supports the superior
court's decision. Cavener had notice and ample opportunity to file a response to the
petition. The court concluded, "There was no mistake, inadvertence, surprise or
excusable neglect on the father's part and none has been asserted." The record
supports this conclusion. While Cavener points to the superior court's decision
extending the deadline for adequate cause to August 2012, that decision did not change
the June 8, 2012 deadline for his response to the petition or the June 14, 2012 hearing
on the pending motion for default.
At least one of the secondary factors, whether Cavener acted with due diligence,
also favors denial of the motion to vacate. Due diligence in this setting contemplates
the prompt filing of a motion to vacate. Akhavuz. 178 Wash. App. at 539. We have held
that three- or four-month delays are too long. In re Estate of Stevens, 94 Wash. App. 20,
35, 971 P.2d 58 (1999) (three months); Luckett v. Boeing Co.. 98 Wash. App. 307, 313,
989 P.2d 1144 (1999) (four months), review denied. 140Wn.2d 1026, 10 P.3d 406
(2000). Cavener moved to vacate nearly eleven months after the order of default. The
motion to vacate was not filed with due diligence.
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No. 70617-9-1/11
In sum, the superior court did not abuse its discretion in denying Cavener's
motion to vacate.6
Affirmed.
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WE CONCUR:
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6 We deny Jolles' request for fees on appeal.
11