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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON rn
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IRINA RUTHERFORD, ) No. 77139-6-1 2,-
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) UNPUBLISHED OPINION
JAMES MICHAEL RUTHERFORD, )
) FILED: November 13, 2018
Appellant. )
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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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