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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                          rn
                     DIVISION ONE                                                    erC
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IRINA RUTHERFORD,                       )       No. 77139-6-1                        2,-
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                    Respondent,         )                                            le       cico
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        v.                              )
                                        )       UNPUBLISHED OPINION
JAMES MICHAEL RUTHERFORD,               )
                                        )       FILED: November 13, 2018
                    Appellant.          )
                                        )
      VERELLEN,J.— In 2010,Irina Rutherford obtained a default judgment

granting dissolution of her marriage to James Rutherford.1 Five years later,

James brought a motion to vacate and claimed he did not learn of the dissolution

until mid-2015 because he was never served with the lawsuit. He also claimed to

have just learned of lanais conversion of his property. James abandoned that

motion for reasons hel has not explained. In 2017, James brought another motion

to vacate and argued the dissolution decree was void due to lack of service of

process and that the conversion of his property constituted fraud.

      The court denied James's motion because "it was not brought within a

reasonable time as required under CR 60."2 CR 60 does not require that a


      1 For purposes of clarity, we refer to the Rutherfords by their first names.
      2 Clerk's Papers(CP)at 123.
No. 77139-6-1/2


CR 60(b)(5) challenge based on lack of personal jurisdiction be filed within a

reasonable time. If the trial court contemplated an alternative theory such as

waiver, additional findings are required.

       We reverse and remand for further proceedings consistent with this opinion.

                                        FACTS

       James and Irina separated on June 4, 2009. On April 22, 2010, Irina

petitioned to dissolve their marriage. The following day, William Sheehan filed an

affidavit declaring that he personally served a dissolution petition and a summons

on James. James never responded to the petition, and a King County Superior

Court commissioner granted Irina% motion for default on August 5, 2010. The

commissioner granted Irina's dissolution petition the same day. The decree of

dissolution ordered that James pay $4,000 per month in maintenance to Irina.

       On July 28, 2015, James filed a motion to set aside the default judgment

pursuant to CR 60(b)(1), vacating judgments for mistakes, surprise, excusable

neglect or irregularity in obtaining judgment, and CR 60(b)(3), vacating judgments

due to newly discovered evidence. He contended that he was not properly served

and, as a result,"did not know of the divorce ... until the first half of 2015.'13

James also asserted that Irina converted checks payable to him from the

Department of Labor and Industries. Irina responded by obtaining a show cause

order compelling James to explain why he never paid any maintenance as




       3 CP at 163.




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No. 77139-6-113


required by the dissolution decree. Subsequently, James "did not follow through

with [the] motion."

       On April 21,2017, James filed a new motion to set aside the default

judgment as void for lack of personal jurisdiction pursuant to CR 60(b)(5) and for

fraud under CR 60(b)(4).5 In support, James submitted a new declaration from

Sheehan stating that Irina tricked him into serving the wrong man in 2010, and that

he met James for the first time in 2015. The trial court denied the motion because

it "was not brought within a reasonable time as required under CR 60.'1 The court

also denied James's motion for reconsideration.

       James appeals.

                                     ANALYSIS

       CR 60(b)(5) allows relief from a final judgment if that judgment is void. Our

review of a CR 60(b) decision is limited to the trial court's decision and generally

does not consider the underlying order the party seeks to vacate But a court has

a nondiscretionary duty to vacate a void judgments A CR 60(b) motion must be

made "within a reasonable time" of the judgment, order, or proceeding that the


       4 CP at 173.

        5 James's motion actually cites to CR 60(b)(5) and CR 60(b)(6), not
CR 60(b)(4), but he clarified in his motion for reconsideration that he had advised
the trial court at oral argument he was relying on CR 60(b)(4). Regardless, we do
not address the fraud claim because James did not include any argument in his
brief regarding fraud.
       6 CP  at 123.
       7 Persinoer v. Persinoer, 188 Wn. App. 606,609, 355 P.3d 291 (2015).

       8 Allstate Ins. Co. v. Khan', 75 Wn. App. 317, 323,877 P.2d 724 (1994).




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No. 77139-6-1/4


movant seeks to vacate. However, this restriction does not apply to CR 60(b)(5)

motions to vacate a void judgment.9 "A motion to vacate a void judgment may be

brought at any time."10 Not even [aches prevents an attack on a void judgment.11

       Irina acknowledges that James's 2015 motion to vacate based on lack of

personal jurisdiction may not have been barred by the reasonable time

requirement in CR 60(b). But she argues "[James's] intentional abandonment of

that motion and subsequent decision to wait two years to file a nearly identical

motion demonstrates his 2017 motion failed to meet the 'reasonable time'

requirement under CR 60:12 She provides no compelling authority or argument,

however, that the reasonable time requirement of CR 60(b) applies to a renewed

CR 60(b)(5) motion to vacate a void judgment.

       We can affirm a trial court decision on an alternative theory if the record has

been sufficiently developed to fairly consider the theory."

       An improperly served party can waive the affirmative defense of lack of

personal jurisdiction by rule or as a matter of common law.14 Common law waiver


       9 Chai v. Kong   122 Wn. App. 247,254, 93 P.3d 936(2004).
       10 Id.

      11 Khani, 75 Wn. App. at 323-24.
      12 Resp't's Br. at 9.

      13 RAP 2.5(a); Matter of Marriage of Foran 67 Wn. App. 242, 248, 834 P.2d
1081 (1992)("A trial court's decision may be sustained on any theory within the
pleadings and the evidence, even if the trial court did not consider it.").
      14 Castellon v. Rodriguez,4 Wn. App. 2d 8, 15,418 P.3d 804 (2018);
French v. Gabriel, 116 Wn.2d 584, 588-95, 806 P.2d 1234(1991). Irina does not
suggest any form of waiver by rule.



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No. 77139-6-1/5


exists "to prevent a defendant from ambushing a plaintiff during litigation either

through a delay in asserting a defense or misdirecting the plaintiff away from a

defense for tactical advantage."15 "The existence of waiver has both factual and

legal components, as the Tenth Circuit Court of Appeals explained:'Whether facts

on which a claim of waiver is based have been proved, is a question for the trier of

the facts, but whether those facts, if proved, amount to a waiver is a question of

law.'"16 The record before us is not sufficiently developed to establish that an

ambush occurred, as required for common law waiver."

       Irina suggests we affirm the trial court because James "failed to show by

clear and convincing evidence" that service was insufficient or that Irina converted

his property." But the court made no factual findings or legal conclusions on

either issue. And the merits of those claims depend largely on credibility

determinations that must be made by the trial court." Sheehan's credibility is

particularly relevant here because no other independent evidence from 2010

establishes that Irina served James.


       15King v. Snohomish County, 146 Wn.2d 420,424,47 P.3d 563(2002).
      16 Brundridae v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41, 191 P.3d
879(2008)  (internal quotation marks omitted)(quoting Advantor Capital Corp. v.
Yeary, 136 F.3d 1259, 1267(10th Cir. 1998)).
      11 King 146 Wn.2d at 424. Irina cites no case law where abandonment of a
motion automatically constitutes waiver and precludes a renewed CR 60(b)(5)
motion.
      18 Resp't's Br. at 11.

      16 Dalton v. State, 130 Wn. App. 653,656, 124 P.3d 305 (2005); see
RespTs Br. at 12(arguing service of process was proper because "Mr. Sheehan's
2017 declaration recanting his 2010 sworn affidavit of service lacked credibility.").



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No. 77139-6-1/6


       The reasonable time requirement of CR 60 does not apply to a CR 60(b)(5)

motion to vacate a void judgment. To the extent Irina contends an alternative

theory such as waiver applies, we are presented with a mixed question of law and

fact with a contested and underdeveloped factual record. Because the existing

findings do not address a waiver, we decline to affirm on this alternative theory.

       Therefore, we reverse and remand for further proceedings consistent with

this opinion.20




WE CONCUR:



 S          i Wel-                                  fic.14e.R3t_ .




      20 Irina claims James's appeal is frivolous and requests attorney fees
pursuant to RAP 18.9. Because James's appeal was not frivolous, we deny her
request.



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