                                                                              2016 Jl      -o AMihOJ




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of:
                                                      DIVISION ONE
LESLIE PATTEN,
                                                      No. 73651-5-1
                      Respondent,
                                                      UNPUBLISHED OPINION
              and


DAVID PATTEN,

                      Appellant.                      FILED: June 6, 2016


       Dwyer, J. — David Patten1 appeals from a default dissolution decree,

entered after he failed to timely participate in the underlying proceedings. He

contends that the superior court improperly denied his motion to vacate the

default decree. Because the superior court did not abuse its discretion by

concluding that David failed to establish that his failure to participate was due to

excusable neglect, we affirm.

                                              I


       Leslie and David Patten were married for 17 years and had three children

before Leslie filed a petition for dissolution, a summons, and a motion for

temporary orders on August 8, 2013. David was served the following day. The
petition asked for a fair and equitable division of all property and liabilities to be


       1 Because the parties share a surname, we refer to each by his or her given name.
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determined by the court at a later date, child support and day care expenses,

approval of the proposed parenting plan, award of tax exemptions for the

dependent children, change of Leslie's name, and attorney fees.

       David appeared by telephone at the August 23, 2013 hearing for

temporary orders, asking for a continuance in order to retain a lawyer. The

commissioner granted a continuance to September 20, 2013. The September 20

hearing was again continued to October 17, 2013 because David still had not

responded to the pleadings. After David failed to appear at the October 17

hearing, the commissioner entered temporary orders.

       David then failed to provide any financial support for the children, in

violation of the temporary orders. He likewise failed to comply with the case

schedule and did not appear at the status conference on December 27, 2013. At

the status conference, the court acknowledged that Leslie planned to file a

motion for default due to David's failure to respond to the petition, and

rescheduled the conference to April 4, 2014, unless final orders were entered by

March 28, 2014.

       David was incarcerated beginning in January 2014 for a hit and run

incident.

       On January 17, 2014, Leslie served David with an amended petition for

dissolution. The following day, Leslie also served David with the motion and

declaration for default, along with proposed versions of the orders for default,

decree of dissolution, final parenting plan, order of child support, final restraining

order, and findings of fact and conclusions of law. David was also served with
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notice that the motion for default would be heard on February 18, 2014.

       Leslie filed the amended petition with the court on January 21, 2014.

Nearly three weeks passed after David was served with the amended petition for

dissolution and motion for default, yet he made no effort to answer the amended

petition for dissolution or to respond to the motion for default. As a result, on

February 6, 2014, Leslie filed the motion for default, supporting declaration, and

notice of hearing, setting the hearing for February 18, 2014.

       David had not responded to any of Leslie's pleadings by the time of the

hearing on the motion for default, nor did he appear at the hearing. Accordingly,

on February 18, 2014, the superior court found David in default and entered final
orders that were consistent with the relief Leslie sought in her amended petition

for dissolution. The final orders included a restraining order against David

effective until January 30, 2019.

       David was released from jail on April 22, 2014, just two months after the

final default orders were entered. Nevertheless, he did not file a motion to vacate

the default decree, order of child support, and parenting plan until February 18,

2015. He did not file an order to show cause until March 3, 2015, and did not

serve Leslie with any paperwork until March 19, 2015.

       The basis for his motion to vacate under CR 60(b)(1) was for "an

irregularity in obtaining this judgment or order given that they did not wait 90 days
after the service of the amended summons and petition."2 David also stated that




       2Appellant has abandoned this argument on appeal.
No. 73651-5-1/4



when the original petition for dissolution was filed, he "understood that the court

was to make a fair and equitable division of property at a later date." He "took

that to mean that [he] would receive something from [the] marriage," maybe even

"one-half."

       The Superior Court denied David's motion to set aside the final orders,

concluding that he "did not demonstrate a legal basis to set aside the orders"
under White v. Holm, 73 Wn.2d 348, 438 P.2d 581 (1968). In support of its

conclusion, the court found that David "did not demonstrate excusable neglect,"

"did not act with due diligence after he became aware ofentry of the default
orders," and "did not provide substantial evidence to supporta conclusion that
the trial court would make a different distribution of assets." The court also

determined that "[Leslie] would suffer a hardship if the orders were set aside at

this point."

        David moved for reconsideration, which the superior court denied. David

appeals.

                                          II


        David contends that the superior court abused its discretion by denying his
 motion to vacate the dissolution decree. This is so, he asserts, because his

failure to participate was due to excusable neglect. We disagree.
        We review a superior court's ruling on a motion to vacate a default
 judgment for an abuse of discretion. Little v. King, 160 Wn.2d 696, 702, 161
 P.3d 345 (2007). Asuperior court abuses its discretion only when its decision is
 manifestly unreasonable or is based on untenable grounds or untenable reasons.


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Luckettv. Boeing Co., 98 Wn. App. 307, 309-10, 989 P.2d 1144 (1999) (quoting

Lane v. Brown & Haley, 81 Wn. App. 102, 105, 912 P.2d 1040 (1996)).

Unchallenged findings of fact are verities on appeal. Cowiche Canyon

Conservancy v. Boslev, 118 Wn.2d 801, 819, 828 P.2d 549 (1992).

Unchallenged conclusions of law become the law of the case. King Aircraft

Sales. Inc. v. Lane, 68 Wn. App. 706, 716, 846 P.2d 550 (1993).

       Default judgments are generally disfavored in Washington. "We prefer to

give parties their day in court and have controversies determined on their merits."
Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007). "But we also value

an organized, responsive, and responsible judicial system where litigants

acknowledge the jurisdiction ofthe court to decide their cases and comply with
court rules." Little, 160 Wn.2d at 703. "Our primary concern in reviewing a trial

court's decision on a motion to vacate is whether that decision is just and

equitable." TMT Bear Creek Shopping Ctr.. Inc. v. PETCO Animal Supplies, Inc.,
140 Wn. App. 191, 200, 165 P.3d 1271 (2007). '"What is justand proper must be
determined by the facts of each case, not by a hard and fast rule applicable to all
situations regardless of the outcome.'" Griggs v. Averbeck Realty, Inc., 92
Wn.2d 576, 582, 599 P.2d 1289 (1979) (quoting Widucus v. Sw. Elec. Coop.,

Inc., 26 III. App. 2d 102, 109, 167 N.E.2d 799 (1960)). "Abuse ofdiscretion is
less likely to be found if the default judgment is set aside." Griggs, 92 Wn.2d at

582.

       Adefault judgment may be set aside in accordance with CR 60(b). CR
60(b)(1) states, in relevant part:



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                (b) Mistakes; Inadvertence; Excusable Neglect; Newly
      Discovered Evidence; Fraud; etc. On motion and upon such
      terms as are just, the court may relieve a party or the party's legal
      representative from a final judgment, order, or proceeding for the
      following reasons:

              (1) Mistakes, inadvertence, surprise, excusable neglect or
      irregularity in obtaining a judgment or order.

      The party seeking to vacate a default judgment pursuant to CR 60(b)(1)

must establish

      (1) That there is substantial evidence extant to support, at least
      prima facie, a defense to the claim asserted by the opposing party;
      (2) that the moving party's failure to timely appear in the action, and
      answer the opponent's claim, was occasioned by mistake,
      inadvertence, surprise or excusable neglect; (3) that the moving
      party acted with due diligence after notice of entry of the default
      judgment; and (4) that no substantial hardship will result to the
      opposing party.

White, 73 Wn.2d at 352 (emphasis added). The first two factors are primary.

Rosander v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 404, 196 P.3d 711

(2008).

       David's substantive briefing relative to this issue was limited to the

following statements.

       [David] has a valid defense because the wife was awarded all the
      assets and the trial court never even addressed the issue whether it
      was fair and equitable. . . .
                He could not appear because he was in jail and had no
          reasonable method to appear in the court. He could not find an
          attorney he could afford with a retainer until the year was about to
          expire. There is no substantial hardship because [Leslie] can still
          raise all the defenses she was entitled to.

These bare assertions do not satisfy David's burden.

          Regarding the supposed lack of justice and equity in the asset distribution,
as the superior court explained, David's assertion "isn't a defense. That's
No. 73651-5-1/7



dissatisfaction. A defense would be articulating the evidence that the Court

would look at and make a determination that the assets should be distributed

differently."3 Regarding his inability to "appear" at the hearing on Leslie's motion

for default, David conflates his appearance with his participation. Default was

proper in this case because David never responded to either of Leslie's petitions.

Such response did not require him to be physically present at the relevant

hearing. Moreover, David's statement that he anticipated that the result of the

proceedings, even without his participation, would be a more favorable

distribution of assets for him (possibly even "one-half) indicates that his lack of

response was due not to excusable neglect but, instead, to conscious choice.

He seems now to regret his lack of response, but this does not change the true

motivation for his behavior at the time.

        Even were his incarceration to constitute excusable neglect, a finding that

we do not make, it did not prevent him from exercising due diligence in moving to

vacate the default. David's proffered explanation for his extended delay in filing

the motion to vacate the default judgment is that he could not afford an attorney.

However, he cites no authority for the proposition that inability to pay for an

attorney excuses the due diligence requirement, and we will not endorse such a
rule.4 Finally, we are unpersuaded by David's assertion, which is contrary to the


         3 Furthermore, contrary to David's assertion, the superior court did find that the property
division was fair and equitable. The court's findings offact and conclusions of law specifically
stated, "The distribution of property and liabilities as set forth in the decree is fair and equitable."
         4Indeed, as the superior court noted, such a rule would be contrary to the principles of
CR11.
                 It isn't that the Court doesn't understand the difficulties that people have
        when they don't have an attorney when they're trying to get money to get an
        attorney. The problem is the rules are therefor everyone... . Most people don't

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No. 73651-5-1/8



superior court's finding, that there would be no hardship associated with vacating

the default decree. The dissolution decree and associated orders settled many

aspects of the Pattens' lives. Thus, as the superior court recognized, there is

particular value to Trv[ing] with and work[ing] under" this type of judgment and,

correspondingly, there would be special hardship associated with upending either

party's expectations related to the judgment.

       In sum, the superior court's findings are supported by the record and it did

not abuse its discretion by denying David's motion to vacate the default

dissolution decree entered after he failed to timely respond to the underlying

dissolution petition.5

                                                Ill


       David also raises several new claims of error for the first time on appeal.6

He contends that these claims are permitted because, he asserts, they establish

that the superior court herein lacked jurisdiction to enter the defaultjudgment.

Because his claims of error do not implicate jurisdiction, his claims fail.

       Jurisdiction is comprised of two components: personal jurisdiction and

subject matter jurisdiction. Subject matter jurisdiction "refers to a court's ability to
entertain a type ofcase, not to its authority to enter an order in a particular case."
In re Marriage of Buecking. 179 Wn.2d 438, 448, 316 P.3d 999 (2013) (emphasis


        have the funds to have an attorney. CR 11 indicates that we can't treat people
        differently because they don't have attorneys.
          5Although not the focus of its ruling, the superior court also determined that David's
motion to vacate was not timely. Because the court's determination regarding excusable neglect
is sufficient to justify its order, we do not address this aspect of the court's ruling.
        6Specifically, he contends that the superior court lacked jurisdiction because (1) service
ofthe motion for default was "premature" pursuant to CR 55, (2) the court was given insufficient
notice ofthe hearing on the motion for default under the local rule, and (3) the default judgment
included a final restraining order even though, he asserts, the "complaint did not ask for one."

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No. 73651-5-1/9



added). Thus, "if a court can hear a particular class of case, then it has subject

matter jurisdiction." Buecking, 179 Wn.2d at 448.

       Under RCW 26.09.030, a party who is, or is married to, a resident of this

state may petition for dissolution of marriage, alleging that the marriage is

irretrievably broken. When 90 days have elapsed since the petition was filed and

from the date when the respondent was served with the summons, the court

"shall" enter a decree of dissolution "[i]f the other party . . . does not deny that the

marriage ... is irretrievably broken." RCW 26.09.030(a). In entering the decree,

the court may enter an order of child support, maintenance, property division,

and a restraining order. RCW 26.09.050(1). In Buecking, the court held that if

the residency requirement under RCW 26.09.030 is met, the superior court has

full jurisdiction overthe proceedings and authority to grant "the relief
contemplated by the statute." 179 Wn.2d at 452.

       Herein, the superior court had jurisdiction over David personally and over

the subject matter. The residency requirement was met as both David and Leslie
have at all times during these proceedings been residents of Washington.

Because residency is the prerequisite to the superior court's exercise of
jurisdiction under RCW 26.09.030, it had the authority to preside over the parties'
dissolution case. In addition, the dissolution decree, and the orders entered

along with it, were the type of relief "contemplated by the statute." Accordingly,
the superior court exercised full and proper personal and subject matter

jurisdiction over the final orders entered by default.
        Because, contrary to David's contention, his additional claims do not
No. 73651-5-1/10



demonstrate that the superior court lacked jurisdiction over the proceedings

herein, he has not shown that they may be raised for the first time on appeal.7

       Affirmed.




We concur:




                                                 $ ?e4 f^<?y-^wX




        7David also assigns error to the superior court's denial ofhis motion for reconsideration.
But he offers no argument on this point. Accordingly, he fails to show that the court abused its
discretion in denying the motion.


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