In the Matter of the Marriage of: Nancy Ann Bevilacqua-Madrigal & Eduardo Guadalupe Madrigal

FILED
NOVEMBER 30, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of:
) No. 37830-6-III
)
NANCY ANN BEVILACQUA- )
MADRIGAL, )
)
Respondent, ) UNPUBLISHED OPINION
)
and )
)
EDUARDO GUADALUPE MADRIGAL, )
)
Appellant. )
LAWRENCE-BERREY, J. — Eduardo Madrigal appeals after the trial court denied
his CR 60(b)(11) motion to vacate a default dissolution decree and associated final
orders. Because Mr. Madrigal failed to show that the property award and the parenting
plan were based on incomplete, incorrect, or conclusory information, we affirm.
FACTS
Nancy Bevilacqua-Madrigal and Eduardo Madrigal were married in 2007. In
April 2019, Ms. Madrigal filed an amended petition for dissolution of marriage. In her
amended petition, she requested the court enter a parenting plan giving her primary
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residential placement of the parties’ seven-year-old son, J.M, and limiting Mr. Madrigal’s
visitation and decision-making. Her request was supported by a declaration accusing Mr.
Madrigal of using and selling illegal drugs, and of assaulting and threatening her and their
son. She noted she had a permanent protection order and asked the court to enter a
protection order for her son. Her accusations were confirmed by sworn statements from
her father and adult children and, more notably, by a detailed handwritten sworn
statement from a woman who had known the couple for seven years. In that statement,
the woman confirmed that Ms. Madrigal and J.M. often stayed with her for their own
safety, and that J.M. was terrified of his father, had nightmares, and believed his father
would kill him and his mother. The woman’s statement concluded by saying she would
be at the hearing if the court wanted to ask her questions.
Mr. Madrigal responded by requesting standard visitation and joint decision-
making. In a declaration, he portrayed himself as the responsible parent, accused Ms.
Madrigal of being unfaithful, and accused her adult children of repeatedly using illegal
drugs in the family home.
The trial court heard argument on April 8, 2019. Although it did not enter a
temporary parenting plan, it did enter an order restraining Mr. Madrigal from harassing or
having any contact with Ms. Madrigal until 2099 and J.M. for one year.
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In late February 2020, Ms. Madrigal requested renewal of the one-year restraining
order that protected J.M. In her supporting declaration, she noted that Mr. Madrigal had
failed to obtain a court-ordered hair follicle test and court-ordered counseling. She also
informed the court that Mr. Madrigal had three warrants out for his arrest and had
repeatedly violated the restraining order, resulting in over 10 police reports. Mr.
Madrigal did not appear for the March 9, 2020 hearing, but his attorney did. After
argument, the trial court extended the restraining order to protect J.M. for an additional
year.
Mr. Madrigal never filed an answer to Ms. Madrigal’s dissolution petition.
In late July 2020, Ms. Madrigal moved for an order of default and noted her motion for
August 17. Counsel for Mr. Madrigal filed a notice of intent to withdraw, with a
withdrawal date of August 27. At the August 17 default hearing, counsel for Mr.
Madrigal explained he had attempted to reach his client but was not successful. The trial
court entered the default order. The order included the following warning: “The court
may sign orders and hold hearings in this case without notice to the defaulted party.”
Clerk’s Papers (CP) at 31. There was no objection to this language.
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On August 18, the court administrator provided Ms. Madrigal’s counsel a date of
September 9, 2020, to present evidence for the final orders. Counsel filed notice of the
September 9 hearing with the court.
Also on August 18, Mr. Madrigal called his attorney and told him that he had
returned to Washington. He had been in Mexico for several months, and once he returned
to Ellensburg in late June 2020, he was arrested for failing to comply with court orders
and was incarcerated for 20 to 30 days.1 Once Mr. Madrigal called his attorney on
August 18, the latter filed a notice of appearance and provided a copy of that notice to
opposing counsel.
Ms. Madrigal testified at the evidentiary hearing, and the court admitted a letter
from J.M. In conjunction with the final dissolution decree, the court entered findings of
fact and conclusions of law about the marriage, including a finding “that there has been
significant domestic violence in this household.” CP at 42.
The property award gave Ms. Madrigal the family home—a duplex co-owned with
Ms. Madrigal’s father. Ms. Madrigal testified that the marital equity in the duplex was
1
In his motion to set aside the dissolution decree and final orders, Mr. Madrigal
failed to explain why he could not have kept in contact with his attorney while he was in
Mexico, or upon his arrest and incarceration in Ellensburg, or even after his release.
Instead, he simply says he did not own a phone and it took him weeks after being released
to get one. A person does not need to own a telephone to make a telephone call.
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$15,000. The award offset this equity by assigning to Ms. Madrigal just over $15,000 of
credit card debt. In addition, the award assigned to Ms. Madrigal the debt for each asset
awarded to her.
The parenting plan prohibited Mr. Madrigal from having contact with J.M. The
reasons for this were Mr. Madrigal’s physical and repeated emotional abuse of J.M.,
domestic violence and assault in the home, Mr. Madrigal’s long-term emotional problems
and substance abuse that interfered with his ability to parent, few or no emotional ties
with J.M, and his use of conflict in a way that endangered or damaged J.M.’s
psychological development. The court entered a third restraining order, restraining Mr.
Madrigal from any contact with J.M. for one year.
On September 14, Mr. Madrigal called his attorney because he learned that final
papers had been entered. On September 22, Mr. Madrigal, citing CR 60(b)(11), moved to
vacate the dissolution decree and the associated final orders. He argued that it would be
inequitable not to vacate the decree and associated final orders because (1) he had
$60,000 of equity in the duplex but was assigned the duplex debt, and (2) the parenting
plan deprived him of all contact with J.M.
The superior court received briefing from the parties and held a hearing. It later
issued a letter ruling denying Mr. Madrigal’s motion. In relevant part, the ruling stated:
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“Through his own inexcusable neglect [Mr. Madrigal] failed to keep in contact with his
attorney and the case moved along without his participation.” CP at 105. The trial court
entered its order denying Mr. Madrigal’s motion to vacate, and Mr. Madrigal timely
appealed.
ANALYSIS
A. FILING A NEW NOTICE OF APPEARANCE DID NOT ABROGATE THE COURT’S
PRIOR DEFAULT ORDER
Mr. Madrigal contends his attorney’s new notice of appearance should have alerted
the trial court that he wanted to participate in the default evidentiary hearing. But even if
it did, we conclude the trial court was not required to give Mr. Madrigal notice of the
hearing.
When a party “has been adjudged to be in default, he is not entitled to notice of
subsequent proceedings.” Conner v. Universal Util., 105 Wn.2d 168, 172, 712 P.2d 849(1986) (citing Pedersen v. Klinkert, 56 Wn.2d 313, 320, 352 P.2d 1025 (1960)); see also
CR 5(a). The reason for this is simple: “‘After default a defendant cannot be heard to
contest the subsequent proceedings, and certainly it would be a useless thing to require
notice of such proceedings to be served upon him.’” Pedersen, 56 Wn.2d at 319 (quoting
Gen. Lithographing & Printing Co. v. Am. Trust Co., 55 Wash. 401, 403, 104 P. 608(1909)). The Pedersen court examined three prior cases in which appellants, against
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whom an order of default has been entered, argued that they were entitled to notice before
a judgment could be entered against them. Id. at 318. It noted that “[i]n each instance we
held that the appellants, being in default, were not entitled to notice of the entry of
judgment against them.” Id.
Consistent with these authorities, the trial court’s default order warned, “The court
may sign orders and hold hearing in this case without notice to the defaulted party.”
CP at 31. An attorney’s new notice of appearance is insufficient to abrogate a court’s
default order. The procedure for abrogating a default order or judgment is well known:
one must timely bring a motion to set aside the default order or judgment, and establish
“good cause” for doing so. See CR 55(c)(1).
B. DENIAL OF MOTION TO VACATE WAS WITHIN TRIAL COURT’S DISCRETION
Mr. Madrigal argues the trial court abused its discretion by denying his motion to
vacate the default dissolution decree and associated orders. We disagree.
We review a trial court’s decision whether to set aside a default judgment under
CR 60(b) for abuse of discretion. Little v. King, 160 Wn.2d 696, 702-03, 161 P.3d 345(2007). Generally, default judgments are not favored because the policy of the law
prefers controversies to be decided on their merits rather than by default. Id. at 703. But
we also value an organized, responsive, and responsible judicial system where litigants
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comply with court rules. Id. (citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581,
599 P.2d 1289 (1979)). “The fundamental principle when balancing these competing
policies is ‘whether or not justice is being done.’” Id. (internal quotation marks omitted)
(quoting Griggs, 92 Wn.2d at 582).
A party moving to set aside a default judgment under CR 60(b)(1) must establish
four factors: (1) there is substantial evidence supporting a prima facie defense, (2) the
failure to timely appear and answer was due to mistake, inadvertence, surprise, or
excusable neglect, (3) the defendant acted with due diligence after notice of the default
judgment, and (4) the plaintiff will not suffer a substantial hardship if the default
judgment is vacated. Little, 160 Wn.2d at 703-04 (discussing the standard under
CR 60(b)(1)); White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968) (discussing the
standard under CR 60(b)(1)).2
Application of these four factors is not a mechanical test; whether or not a default
judgment should be set aside is a matter of equity. Little, 160 Wn.2d at 704. The first
two factors are primary, while the second two factors are secondary. Id.2
The Little court cited CR 60(b)(1), not CR 55(c). CR 55(c)(1) provides: “For
good cause shown and upon such terms as the court deems just, the court may set aside an
entry of default and, if a judgment by default has been entered, may likewise set it aside
in accordance with rule 60(b).” The four factors set forth above are an amalgam of
CR 55(c)’s “good cause” standard and CR 60(b)(1)-(11)’s other standards.
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In both Little and White, the defendant sought to vacate the default judgments
under CR 60(b)(1), which permits relief based on mistake, inadvertence, surprise, and
excusable neglect. Here, Mr. Madrigal seeks to vacate the default dissolution decree and
associated orders under CR 60(b)(11), which—according to one published case—permits
relief based on the trial court having incomplete, incorrect, or conclusory factual
information. See Caouette v. Martinez, 71 Wn. App. 69, 78, 856 P.2d 725 (1993).
We combine and adjust the first two Little factors to align with Caouette’s view of
CR 60(b)(11).
1. Mr. Madrigal failed to present a prima facie defense because his
assertions fail to show that the trial court’s final orders were based on
incomplete, incorrect, or conclusory factual information
In his motion to vacate and on appeal, Mr. Madrigal relies on CR 60(b)(11) and
argues there are three aspects of the final default orders that warrant setting aside the
default dissolution decree and associated final orders. We review his argument in light of
CR 60(b)(11), the basis of his motion to vacate. As noted above, CR 60(b)(11) permits
vacation of a default judgment based on incomplete, incorrect, or conclusory factual
information. Caouette, 71 Wn. App. at 78.
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Mr. Madrigal argues the trial court gave the marital interest in the duplex to Ms.
Madrigal and the debt to him. It did not. But even if it did, this is not a basis for vacating
the property award under CR 60(b)(11).
He also argues the trial court’s property award was based on incorrect information
about the marital equity in the duplex. He asserts he had $60,000 of equity in the duplex.
We note that Mr. Madrigal’s assertion is unsupported by any document. We further note
that his burden was to provide “substantial” prima facie evidence of a defense, not simply
prima facie evidence. Had the trial court known nothing about Mr. Madrigal, this
unsupported assertion might be sufficient to meet his burden. But the trial court knew
that Mr. Madrigal violated court orders frequently and justifiably discounted his
unsupported assertion. In doing so, it acted within its discretion. We conclude that Mr.
Madrigal’s unsupported assertion that he had $60,000 of equity in the duplex was
insufficient to show that the property award was based on incomplete, incorrect, or
conclusory factual information.
He lastly argues the parenting plan’s prohibition of any contact with his son is
inequitable. This is not a basis for vacating the parenting plan under CR 60(b)(11). But
even if we rephrased his argument to align it with CR 60(b)(11), the record is replete with
evidence that Mr. Madrigal posed a significant threat both to Ms. Madrigal and their son.
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This threat likely would continue until Mr. Madrigal ceased using illegal drugs and
obtained counseling. There is no record that he did either. We conclude the trial court’s
parenting plan was not based on incomplete, incorrect, or conclusory factual information.
2. Mr. Madrigal acted with due diligence after learning of the default
dissolution decree and associated orders
Mr. Madrigal moved to set aside the default judgment approximately one week
after he learned the final papers were entered. In doing so, he acted with due diligence.
3. Granting the motion to vacate would not have caused Ms. Madrigal
substantial hardship
The only hardship Ms. Madrigal would have suffered if the default judgment was
vacated is the expense of a trial. This is not the type of hardship that courts have deemed
“substantial.” Ha v. Signal Elec., Inc., 182 Wn. App. 436, 455, 332 P.3d 991 (2014).
Here, the first factor—which combines the first two Little factors—weighs against
setting aside the default judgment, while the second and third weigh in favor. The first
(combined) factor is the primary factor, and the second and third are secondary. For that
reason, we conclude that the trial court did not abuse its discretion by refusing to vacate
the default dissolution decree and associated final orders.
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C. NO CONSTITUTIONAL VIOLATION OF PARENTAL RIGHTS
Mr. Madrigal contends the parenting plan denies him contact with his son in
violation of his constitutional right to parent. We disagree.
Parents have a long-established fundamental right to control the upbringing of
their children. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042(1923). That right is protected by the Fourteenth and Ninth Amendments to the United
States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d
551 (1972). The right, however, is not absolute. Washington “allow[s] state interference
with parents’ rights to raise their children only where the state seeks to prevent harm or a
risk of harm to the child.” In re Custody of Smith, 137 Wn.2d 1, 18, 969 P.2d 21 (1998),
aff’d sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)
(plurality opinion).
Accordingly, RCW 26.09.191 mandates parenting plan limitations on a parent’s
rights in circumstances where that parent poses a risk of harm to their child: “The parent’s
residential time with the child shall be limited” if the court finds the parent has committed
acts including abusing a child or domestic violence. RCW 26.09.191(2)(a) (emphasis
added). The court may also “preclude or limit any provisions of the parenting plan” if
there are other potentially harmful factors, including “other factors or conduct as the court
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expressly finds adverse to the best interests of the child.” RCW 26.09.191(3)(g). Here,
the record shows that J.M. was terrified that his father would kill him and his mother.
This fear was due to Mr. Madrigal’s drug use, assaultive behaviors, and past threats. The
record supports the parenting plan entered by the court.
Mr. Madrigal contends that the parenting plan permanently prevents him from
having any parental relationship with his son. We disagree. Mr. Madrigal has the option
of filing a motion to modify the parenting plan. His motion will likely fail until he can
establish that he no longer uses illegal drugs and no longer poses a risk of harm to his son.
Perhaps this will provide him incentive to undergo drug testing and counseling, both of
which were previously ordered by the trial court.
D. ATTORNEY FEES AND COSTS
Ms. Madrigal requests attorney fees and costs on appeal. An appellate court has
the discretion to order a party to pay the other party’s attorney fees and costs associated
with an appeal of a dissolution action. RCW 26.09.140. Ms. Madrigal filed a financial
affidavit that establishes her need and Mr. Madrigal’s ability to pay. Subject to her
compliance with RAP 18.1, we award Ms. Madrigal her reasonable attorney fees and
costs.
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Affirmed.
A majority of the panel has determined 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.
Lawrence-Berrey, J.,
j
WE CONCUR:
~~);I; _
Fearing, J.
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