IN RE MARRIAGE OF UNSWORTH ZIEGLER, 21446-0-III (Wash.App. 10-21-2003)

No. 21446-0-IIIThe Court of Appeals of Washington, Division Three. Panel Six.
Filed: October 21, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County Docket No: 96-3-00630-9 Judgment or order under review Date filed: 08/28/2002

Counsel for Appellant(s), Reid T. Ziegler (Appearing Pro Se), P. O. Box 7390, Spokane, WA 99207.

Counsel for Respondent(s), Michele Unsworth (Appearing Pro Se), 4500 S. Pinto, Boise, ID 83709.

SWEENEY, J.

This is a contest over a petition to modify child support. Local superior court rules require 20 days’ notice of a hearing. Spokane County Local Special Proceedings Rule (LSPR) 94.04(f)(5)(C). And if process is mailed, an additional three days is required. CR 5(b)(2)(A). Here, it looks like the notice may have been a few days short. But the local rule also requires an objection to the hearing within 10 days of the request for a hearing. LSPR 94.04(f)(5)(C). And no objection was filed here. The court then properly proceeded with the modification hearing.

FACTS
Michele Unsworth and Reid Ziegler divorced in November of 1998. They have one child, Jessica, now 17 years old. She lives with Ms. Unsworth and her new husband in Boise, Idaho. Ms. Unsworth is self-employed. On December 31, 2001, Ms. Unsworth filed a summons and petition for modification in Spokane County Superior Court. Ms. Unsworth filed a financial declaration, income tax records for the preceding two years, and child support worksheets along with her summons and petition. On January 24, 2002, Mr. Ziegler filed a declaration informing the court that he had filed for chapter 7 bankruptcy protection on December 27, 2001. He attached a notice to creditors and notice of automatic stay. On February 11, Ms. Unsworth moved for default. She did not notify Mr. Ziegler because she claimed Mr. Ziegler had failed to appear and more than 20 days had elapsed since Mr. Ziegler was served. On March 1, the court construed Mr. Ziegler’s January 24 declaration as a response and denied Ms. Unsworth’s default motion. On March 5, Ms. Unsworth moved for an order declaring that a bankruptcy stay has no effect on the support modification action. The motion was set for argument on March 15. Mr. Ziegler asked for a continuance because he was going out of town. On March 20, the court granted his request. On April 5, the court ordered that: (1) Ms. Unsworth’s motion for modification of child support would proceed to hearing; and (2) an order of default would be entered against Mr. Ziegler if he did not file a child support schedule and response to the petition five days before the hearing.

The court also found that: (1) the automatic bankruptcy stay did not apply to a child support modification action; and (2) more than one year had passed since the most recent entry of an order of child support or action to modify child support. Mr. Ziegler requested that the case be preassigned. And it was preassigned to Whitman County Superior Court Judge David Frazier. On July 2, Mr. Ziegler wrote to Judge Fraizer and requested issuance of a subpoena duces tecum addressed to Ms. Unsworth and her current husband to require production of financial information. On July 15, Ms. Unsworth filed a notice of hearing for a contested hearing on the modification, setting a hearing date of July 29. She mailed the hearing notice to Mr. Ziegler on July 8. The notice set forth Whitman County Superior Court — Judge Frazier’s `home court’ — as the place of hearing. On July 23, Ms. Unsworth filed a corrected notice, changing the hearing location to the Spokane County Courthouse; she mailed that notice to Mr. Ziegler on July 19. On July 18, Judge Frazier wrote to the parties. He denied Mr. Ziegler’s request for issuance of the subpoenas. And he asked for copies of the petition, response, financial worksheets, two years’ income tax returns, current pay stubs, and any other affidavits or declarations. On July 23, Ms. Unsworth sent copies of the requested financial information to Mr. Ziegler. On July 29, Ms. Unsworth personally appeared for the modification hearing; Mr. Ziegler appeared by phone. Mr. Ziegler had not filed any of the documentation requested by Judge Frazier. He instead objected to the court’s jurisdiction. He claimed, among other things, that he was not timely or properly provided notice of the July 29 hearing. The court disagreed and found that Mr. Ziegler received three notices: Ms. Unsworth’s hearing notice mailed on July 8, the corrected notice (amending the location) mailed on July 19, and the judge’s letter of July 18. The court then granted Ms. Unsworth’s motion for default.

On August 12, Mr. Ziegler moved for reconsideration. He claimed the local rules (LSPR 94.04(7)(a)) required more notice.

Judge Frazier held that Ms. Unsworth was entitled to default because Mr. Ziegler was served with the modification summons and petition on January 8 and did not respond. The court also held that Mr. Ziegler waived his right to challenge the hearing date because he did not file an objection.

DISCUSSION
Sufficient Notice of July 29 Hearing.

We review the trial court’s denial of a motion for reconsideration for abuse of discretion. Lund v. Benham, 109 Wn. App. 263, 266, 34 P.3d 902
(2001), review denied, 146 Wn.2d 1018 (2002). Abuse of discretion occurs when the trial court’s decision rests on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). A court’s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and applicable legal standards. In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362
(1997). Both Mr. Ziegler and Ms. Unsworth contend that notice of 10 days is required. Both cite to local rule ‘94.04(7).’ But that rule does not exist. Nor does `LR 94.04(6)’ — cited by the trial judge. Everybody probably intended LSPR 94.04(a)(7). That rule provides for notice when applying for preliminary and temporary orders in family law actions or relief otherwise based on motions. But Ms. Unsworth did not note a `motion.’ She tried to note a contested hearing on her petition for modification. And different rules apply for contested hearings. LSPR 94.04(f)(5) deals with actions for modification of child support. These rules require 20 days’ notice for contested hearings. LSPR 94.04(f)(5)(C).

The hearing form must be filed with the clerk of court with proof of service to schedule a contested hearing on a modification matter. LSPR 94.04(f)(5)(C). Ms. Unsworth mailed the notice on July 8.[1] And service by mail `shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday.’ CR 5(b)(2)(A). The third day following service was Thursday, July 11. So July 11 was the day Ms. Unsworth effected service on Mr. Ziegler. But the hearing was set for July 29. Accordingly, he received only 18 days’ notice. The rule requires 20 days. See LSPR 94.04(f)(5)(C). But a hearing is scheduled with 20 days’ notice only if no objection has been filed within 10 days. LSPR 94.04(f)(5)(C). The objection must be heard on the ex parte docket with at least five days’ notice to the opposing party. And here, although the notice may have missed the mark by two days, Mr. Ziegler did not object. And by failing to object to the hearing, he waived any objection. See Haywood v. Aranda, 97 Wn. App. 741, 744-45, 987 P.2d 121 (1999), aff’d, 143 Wn.2d 231, 19 P.3d 406 (2001). Ms. Unsworth provided a notice for a contested hearing for July 29. Mr. Ziegler appeared by phone but apparently unprepared to proceed. As the trial judge noted, Mr. Ziegler `has not followed the required rules or procedures, has not filed mandatory financial documents, and has not provided the court with information or argument’ relative to the merits. CP at 149. The trial judge then appropriately entered judgment in Ms. Unsworth’s favor. And while the judge styled the order as a default, he essentially decided the petition on the only information he had before him — Ms. Unsworth’s documents. That was a discretionary call by the trial judge and we conclude there is no abuse of discretion. Discovery Requests CR 45(a)(3) requires that a subpoena for a deposition be issued by the attorney of record, judge, or other officer before whom attendance is required. There is no such requirement for the issuance of a subpoena for documentary evidence. See CR 45(b); 4 Lewis H. Orland Karl B. Tegland, Washington Practice: Rules Practice, cmt. 5 at 401 (4th ed. 1992). The court may quash such a subpoena if it is unreasonable and oppressive. CR 45(b).

Even if Mr. Ziegler had issued a self-executed subpoena for the production of documentary evidence and Ms. Unsworth moved to quash the subpoena, the trial court’s order granting a motion to quash the subpoena would be reviewed for an abuse of discretion. Hammond v. Braden, 16 Wn. App. 773, 776, 559 P.2d 1357 (1977).

Here, the trial court found that: (1) the discovery requested was not in compliance and was inconsistent with the discovery rules; (2) the return date on the requested subpoenas was August 10, almost two weeks after the scheduled hearing date; and (3) the discovery requested was unreasonably burdensome. CP at 84-85.

CR 34(a)(1) authorizes a request for the production of designated documents for copying. The request setting forth the items and a reasonable time, place, and manner for the production and copying may be served without leave of court upon any party after or with the documents initiating the action. CR 34(b). The party to whom the request is directed must serve a written response within 30 days or such other period as the court may allow. CR 34(b). But Mr. Ziegler did not make a request under this rule, nor would such a request have been deemed timely.

CR 26(b) allows discovery on any relevant matter, not privileged, without regard to the ultimate admissibility of the information as long as the information sought `appears reasonably calculated to lead to the discovery of admissible evidence.’ The court must limit discovery if it finds that (A) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (C) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.

CR 26(b)(1). The court may so find upon its own initiative after reasonable notice.

Here Mr. Ziegler requested wage histories and pay stubs for the past six months; the last three years’ income tax returns; a `detailed financial disclosure of all assets’ in a year-end report form for the preceding six years; a list of payees, amounts, and dates of all checks written (without a time limit); charge account history since 1997; pension information since 1997 in a year-end report form; inheritance details since 1997; and the name, address, and telephone number of their accountant, together with a signed release allowing Mr. Ziegler access to the accountant. CP at 220-21.

The trial judge did not abuse his discretion by concluding that the request was either unreasonable or unduly burdensome or otherwise not calculated to lead to the discovery of admissible evidence.

Affirmed.

A majority of the panel has determined that 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.

SCHULTHEIS and KURTZ, JJ., concur.