No. 27206-7-IIThe Court of Appeals of Washington, Division Two.
Filed: April 12, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 003023391, Hon. Kitty-Ann Vandoorninck, March 16, 2001, Judgment or order under review.
Counsel for Appellant(s), Steve A. Robins, Columbia Legal Services, 625 Commerce St Ste 430, Tacoma, WA 98402.
Counsel for Respondent(s), Christine D. Langley, Attorney At Law, P.O. Box 2020, Yelm, WA 98597.
BRIDGEWATER, J.
Hwe-Qwi-Di McCloud appeals the trial court’s denial of his motion to vacate the default judgment entered after his wife filed a petition for dissolution, arguing that the court erred in denying his motion because the dissolution action was filed in a county with improper venue. We affirm.
Facts[1]
On July 13, 2000, Arlene McCloud, appearing pro se, filed a petition for dissolution of her marriage to Hwe-Qwi-Di in Pierce County. Arlene and her children were living with her father in Thurston County but had a Pierce County mailing address. Hwe-Qwi-Di also lived in Thurston County. On July 19, Hwe-Qwi-Di was served with the petition, summons, proposed parenting plan, child support worksheets and Arlene’s financial declaration.
On August 9, Hwe-Qwi-Di filed a petition for custody in the Nisqually Tribal Court. He did not file a response or notice of appearance in Pierce County. Following his conviction for assaulting Arlene, she obtained a temporary protection order from the Thurston County Superior Court on August 11.
Arlene moved for an order of default which the Pierce County Superior Court granted on October 19, 2000. On November 13, 2000, Hwe-Qwi-Di filed a motion to vacate the default decree, charging that the judgment should be set aside for improper venue and because of Arlene’s failure to inform the trial court of the custody action filed in the Nisqually Tribal Court.
In response, Arlene filed an affidavit stating that her attorney had attended the hearing in tribal court on September 6, 2000, and had heard the judge inform Hwe-Qwi-Di that the tribal court had no jurisdiction over the case and that he needed to file a response in Pierce County. She also stated that the paralegal who prepared her dissolution papers told her that she could file the action in either Pierce or Thurston County. Arlene explained that she filed the petition in Pierce County because it was more convenient for her and because she thought it would be convenient for her husband, given his dual enrollment in the Nisqually and Puyallup tribes and his frequent presence in Tacoma. She also stated that since her filing of the petition for dissolution, she had been forced to defend against a number of actions filed by Hwe-Qwi-Di’s mother and sister, including a third party custody action filed in the tribal court and a petition for visitation filed in Thurston County. Arlene added that Hwe-Qwi-Di had deliberately left the courtroom before the protection order hearing began and afterward had filed a motion to amend the order, claiming that he had been told he could not attend the hearing. She stated that Hwe-Qwi-Di also walked out of and missed scheduled mediations.
At the hearing on the motion to vacate, Hwe-Qwi-Di did not challenge these assertions but argued that the default judgment had to be vacated because the dissolution petition was filed in the wrong county. Arlene’s attorney acknowledged the improper venue but also noted that Hwe-Qwi-Di has daily connections with Pierce County. She also observed that he had embarked on a deliberate course of harassment since the filing of the petition. The trial court denied the motion to vacate, ruling that although the petition had been improperly filed in Pierce County, “this woman needs to be divorced, and I think it would be a real injustice.”
Report of Proceedings at 7-8.
Hwe-Qwi-Di now appeals the denial of his motion to vacate the default judgment.
Analysis
Hwe-Qwi-Di argues that a motion to set aside a default judgment brought under CR 55(c)(2) must be granted when the original action was filed in a county with improper venue.
The parties do not dispute that Pierce County was the improper venue for the action where they both resided in Thurston County. See RCW 26.09.010(2) (dissolution action may be filed in county where the petitioner resides); see also Schroeder v. Schroeder, 74 Wn.2d 853, 447 P.2d 604 (1968) (where wife suing for divorce failed to bring action in her county of residence, husband was entitled to change of venue to his county of residence).
A default “shall not be entered if it clearly appears to the court from the papers on file that the action was brought in an improper county.” CR 55(a)(4). The purpose of this provision is to discourage the abuse of filing the default action in a county of improper venue where it is inconvenient for the defendant to defend. 4 L. ORLAND AND K. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE, at 520 (4th ed. 1992). Although the drafters of the rule did not intend that a judgment entered in violation of the rule be void, such a judgment is subject to vacation under CR 60 for irregularity. 4 WASH. PRAC., at 520. CR 55(c)(2) explains that a default judgment entered in a county of improper venue is valid but will on motion be vacated for irregularity pursuant to rule 60(b)(1), which provides that a court may relieve a party from a final judgment for mistakes, inadvertence, surprise, excusable neglect or irregularity.
Hwe-Qwi-Di argues, without citing a case discussing either CR 55 or CR 60, that the language of CR 55(c)(2) makes it mandatory for a court to vacate a default judgment entered in a county of improper venue. The relevant case law makes it clear, however, that the decision whether to vacate a default judgment based on irregularity or any other factor listed in CR 60(b)(1) is a matter left to the court’s discretion. See, e.g., Kennewick Irrigation Dist. v. 51 Parcels of Real Property, 70 Wn. App. 368, 370, 853 P.2d 488, review denied, 122 Wn.2d 1027
(1993); Mosbrucker v. Greenfield Implement, 54 Wn. App. 647, 651, 774 P.2d 1267 (1989).
Default judgments are generally disfavored because controversies should be determined on their merits. Norton v. Brown, 99 Wn. App. 118, 123, 992 P.2d 1019 (1999), review denied, 142 Wn.2d 1004 (2000). An orderly system of justice mandates, however, that parties comply with a judicial summons. Norton, 99 Wn. App. at 123. In considering a motion to vacate a default judgment, the court should be guided by equitable principles, and the overriding concern should be whether justice is being done. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581-82, 599 P.2d 1289 (1979). “What is just and 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, 92 Wn.2d at 582 (quoting Widucus v. Southwestern Elec. Coop., Inc., 26 Ill. App.2d 102, 109, 167 N.E.2d 799 (1960)).
As stated, a default judgment entered in a county of improper venue may be vacated for irregularity, which is found under the following circumstances:
Irregularities pursuant to CR 60(b)(1) occur when there is a failure to adhere to some prescribed rule or mode of proceeding, such as when a procedural matter that is necessary for the orderly conduct of trial is omitted or done at an unreasonable time or in an improper manner.
Mosbrucker, 54 Wn. App. at 652. In Mosbrucker, Division Three of the Court of Appeals reversed the denial of a motion to vacate and remanded for consideration of a defendant’s claim of irregularity where there was evidence that the trial court did not have before it a lease agreement in which the defendant’s signature as guarantor had been crossed out.[2]
The court reasoned that the judge granting the default order might well have refused to do so had he seen that the signature upon which the judgment was sought had been crossed off. Mosbrucker, 54 Wn. App. at 653.
Division Three found another irregularity where the trial court entered a default judgment against a party without learning that the defaulting party had already tendered payment of the amount sought in the complaint Kennewick, 70 Wn. App. at 371. The appellate court found it unlikely that the judge would have signed findings of facts that made no mention of payment and then entered an order of default had he been made aware of the earlier tender of payment. Because this irregularity provided a “substantial basis” for vacating the default judgment, the court found that the trial court abused its discretion in denying the motion to vacate. Kennewick, 70 Wn. App. at 371.
We find no substantial basis for vacating the default judgment at issue here. Hwe-Qwi-Di makes no claim that defending the dissolution action in Pierce County was an inconvenience, nor does it appear that Arlene filed the action in Pierce County in an attempt to put him at a disadvantage. When the tribal court judge informed Hwe-Qwi-Di that he needed to respond to the action in Pierce County, he apparently ignored this advice and instead chose to harass Arlene with other litigation and obstructionist actions. The equities in this case clearly favor Arlene, and we agree with the trial court that justice requires denying Hwe-Qwi-Di’s motion to vacate. We hold that the trial court did not abuse its discretion in denying the motion to vacate the default judgment and deny Hwe-Qwi-Di’s request for attorney’s fees on appeal.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J. and QUINN-BRINTNALL, J., concur.