### FILED NOVEMBER 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE MELODY SECCO (nkaHA YNES), Respondent, V. GORDON SECCO, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 34050-3-111 (consolidatedwith No. 

### 34698-6-111)
UNPUBLISHED OPINION
SIDDOWAY, 

### J.

- In successive and consolidated appeals, Gordon Secco challenges the superior court's denial ofhis motions to vacate orders entered inthis proceedingto dissolve his marriage to Melody Haynes (formerly Melody Secco). His first appeal assigns errorto the denial ofhis motionunder CR 60(b)(5) to vacate an order ofdefault he contends was void for lack ofpersonaljurisdiction. The second assigns
errortothe court's denial ofa subsequent motionunder CR60(b)(4) and (9) to vacate the

### No. 34050-3-III (consolidated w/ No. 34698-6-III) Secco v. Secco


### order on the basis offraud orhis inability to defend as the result ofan unavoidable misfortune. The first appeal is dispositive. Mr. Secco overcomes the presumptionthat the court hadjurisdictionto enterthe decree and final orders. Ms. Haynes is unable to demonstrate an honest and reasonable effort to personally serve Mr. Secco before seeking approval for service by mail. We reverse and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND Melody Seccopetitioned for a dissolution ofher marriage to Gordon Secco on February 4, 2014. Two months later, on April 2, she moved the court for an order allowing her to serve him by mail. Using a superior court form, her lawyer included the required averments that Mr. 

### Secco "cannotbe found in this state" and that Ms. Haynes had not been able to locate or serve him because he "has concealed himself/herselfto avoid service ofsummons." Clerk's Papers (CP) at 13-14. As facts supporting these averments, counsel stated, "Service has been attempted 7 times by 2 different authorities and have been unsuccessful," and, as efforts made to locate Mr. 

### Secco, stated "5 attempts by Spokane County SheriffsDepartment. 2 attempts by
__ ." CP at 14. The motion was also supported by a sheriffsreturn ofservice stating that "[a]fter diligent search and inquiry" the signatory deputy sheriffhad been unable to serve Gordon Secco at 8010 E. Augusta Avenue in Spokane Valley (the couples' home address),

2No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco 

### v. Secco indicating "five attempts made." CP at 17. A further declaration from Mark Cavadini, who described himselfas a friend ofMs. Haynes, declared: Try to serve paper onthe following date Feb 18, 2014 at time of3:00pm Feb 19, 2014 at time of 1:30 pm Feb 20, 2014 attime of2:00 pm AtEvery attempt I could hearnoise inside ofthe house, Butno answer! Address 8010 E. AugustaAve. Spokane, WA CP at 15. Undisclosed inthe declarations was the fact thatMs. Haynes continuedto reside at the couple's home at leastparttime during the early February to early April time frame when service ofprocess was being attempted. According to Mr. Secco, during thattime, "I shared the samehome with [Ms. Haynes]. Not only did we share the same home, but
we slept in the same bed." CP at 87. Ms. Haynes claims that for the mostpart she was staying withher daughter orin a rental home ownedby her ex-husband during thattime frame, but she admits to staying at her and Mr. Secco'shome once ortwice a week. The "once ortwice a week" estimate was corroborated by Ms. Haynes's daughter, who testified that her mother stayed at the couple's home at her divorce lawyer's insistence, evidently in the beliefit would advance her legal position inthe property division. CP at 160. An exparte order allowing service by mail was entered by a court commissioner
on April 7. According to a declaration filed by Ms. Haynes's lawyer, he served Mr.
3No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. Secco
Secco by mail the next day. Ms. Haynes claims to have stayed away from the couple's home during the time the substitute service was being effected, so there could be no suggestion that she diverted papers mailed to Mr. Secco at theirhome address. Mr. Secco nonetheless claims he neverreceived them. OnJuly 9, 2014, Ms. Haynes moved for and was granted an order ofdefault. Six weeks later, on the morning ofAugust 22, Mr. Secco and Ms. Haynes were both atthe couple's home before goingto workwhen Mr. Secco slammed a door into Ms. Haynes's foot, breaking a bone. She claims he engaged in an extended assault thatbegan withpushing her down the stairs and concludedwith his slamming her foot in the door and then choking her. Mr. Secco claims her foot was injured accidentally, when Ms. Haynes, and then he, pushed the door into the other during an argument. Ms. Haynes initially wentto workbutwas taken to the hospital by a coworker, and hospital personnel reported the domestic violence assault to police. By 9: 17 a.m. that morning, a deputy sherifflocated Mr. Secco athis place ofwork and arrested him. Mr. Secco was charged with second degree assault and unlawful imprisonment. While Mr. Secco was in custody awaiting trial, Ms. Haynes noted presentment ofa final divorce decree for October 27. Notwithstanding the default order, her lawyer arranged for service ofthe materials to bepresented on Mr. Secco at the correctional facility where he was detained. Mr. Secco claims this is when he first learned ofthe divorce action. According to Mr. Secco, after being served atthe correctional facility, he attempted to 4No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. Secco

contacttwo attorneys buthaving no access to funds, he was unable to pay a retainer. He also claims to have tried to make bail, but bail bond companies consideredhim a flight risk since he is a Canadian citizen. Atthe presentment on October 27, the trial court entered findings offact and conclusions oflaw and signed the final decree ofdissolution. Ms. Haynes requested and
was awarded the entire interest in the couple's home, whichMr. Secco contends was their most significant asset. The final orders were mailed to Mr. Secco on November 10. Mr. Secco was acquitted ofthe domestic violence charges and released from incarceration on January 21, 2015. In August 2015, seven months after he was acquitted and released, Mr. Secco filed
a motion to show cause why the order ofdefault should not be vacated, arguing that the trial court never acquiredpersonaljurisdiction overhim and the default and later orders
were void under CR60(b)(5). A court commissioner denied the motion, commenting in her oral decision on Mr. Secco's delay in seeking reliefand his failure to take action in response to the materials he admitted receiving in October 2014. The written order prepared by counsel and enteredby the court said nothing about delay, however, stating instead that "[s]ervice was properly effectuated and [Mr. Secco] failed to present a compelling reason as to whythis matter shouldbe vacated." CP at 166. A motion for revision was filed and denied, with the superior court stating only, "I'm going to decline



### 5

# I I

.. J No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. Secco

to revise the commissioner." Report ofProceedings (RP) (Dec. 3, 2015) at 23. Mr. Secco filed his first appeal. Five-and-a-halfmonths later, with the first appeal pending, Mr. Secco sought a second orderto show cause why the default decree ofdissolution should not be vacated, this time relying on CR60(b)(4) (providingrelieffor "[f]raud
... , misrepresentation, or other misconduct ofan adverse party") and CR 60(b)(9) (providingrelieffor "[u]navoidable casualty ormisfortune preventingthe party from
... defending"). CP at 218. The trial court denied the motion, questioning Mr. Secco's right to bring serial CR 60 motions but also finding a lack ofevidence ofall nine elements ofcommon law fraud. Mr. Secco filed his second appeal. We consolidated it with the first. ANALYSIS Mr. Secco's first appeal, assigning errorto his motion to the denial ofhis motion to vacate the trial court's orders andjudgment as void, is dispositive. There is no need to address the second. Service ofprocess by means otherthan personal service, i.e., constructive and substitute service, "is in derogation ofthe common law and cannotbe used when personal service is possible." 

### Rodriguezv. James-Jackson, 127 Wn. App. 139, 143, 111 P.3d 271 (2005). "Whenthe defendant cannotbe found within the state," however, and
an affidavit is filed asserting that fact and otherprerequisites, the court may authorize service by publication. RCW4.28.100. By courtrule, ifthe circumstancesjustify 6No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. 

### Secco
service by publication and the servingparty files an affidavit stating facts from which the court determines that service by mail isjustas likely to give actual notice as service by publication, the courtmay order service by mail. CR4(d)(4). Strict compliance withthe statute authorizing service by publication is required for either type ofsubstitute service. Compliance in this case required two things, the first beingthat 

### Mr. Secco could notbe found within the state 

### infact, which is established by demonstrating Ms. Haynes's honest and reasonable effortto locate him for service before seeking service by mail. 

### Dobbins v. 

### Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1987). Compliance also required a sufficient affidavit from Ms. Haynes or on her behalf, averring that (1) after a diligent search, 

### Mr. Secco could not be found in Washington; (2) he was a resident ofWashington; and (3) he either left the state or concealed himselfwithin it, with the intent to defraud creditors or avoid service of process. 

### Pascua v. 

### Heil, 126 Wn. App. 520, 526, 108 P.3d 1253 (2005); RCW 4.28.100(2). To ensure that substitute service is being used only as a lastresort, the affidavit mustprovidethe specific facts supportingthe required assertions, not conclusory statements, and the authorizingjudge must closely scrutinize the facts provided rather than merely serving as a rubber stamp. 

### Pascua, 126 Wn. App. at 527-28. When allegedly defective substitute service is followed by entry ofan order of default and defaultjudgment, the defendant may move to set aside thejudgment as void for lack ofpersonaljurisdiction. CR 60(b)(5); 

### Vukich v. 

### Anderson, 97 Wn. App. 684, 7No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. Secco 686, 691, 985 P.2d 952 (1999). When there is a recital in a defaultjudgmentthatproper service ofprocess has occurred, a presumption of jurisdiction arises, but it can be
overcome. 

### Brenner v. Port of Bellingham, 53 Wn. App. 182, 186, 765 P.2d 1333 (1989) (citing

### Burns v. Stolze, 111 Wash. 392, 395-96, 191 P. 642 (1920)). Once overcome, the burden shifts to the plaintiffto produce evidence that a reasonable searchwas made. Id. at 187. Ifservice was notproper, dismissal is required evenwhere a defendanthas actual notice ofthe lawsuit. 

### In re Marriage of Logg, 74 Wn. App. 781,784,875 P.2d 647 (1994). There is no time limitto bring a motionto vacate a voidjudgment. 

### Servatron v. Intelligent Wireless Prods., Inc., 186 Wn. App. 666,679,346 P.3d 831 (2015). Because courts have a mandatory, nondiscretionary duty to vacate voidjudgments,
a trial court's decision to grant or deny a motionto vacate a defaultjudgmentfor want of jurisdiction is reviewed de novo. 

### Ahten v. Barnes, 158 Wn. App. 343,350,242P.3d 35 (2010). The issue beforethe court in a

### postjudgment CR 60(b) motion is not the sufficiency ofthe original affidavits but "what 

### infact did the plaintiffdo before seeking [substitute] service." 

### Brennan v. Hurt, 59 Wn. App. 315, 319, 796 P.2d 786 (1990). What in fact happened canbe supported by supplemental affidavits. Id. This is unlike the situation where the defendant specially appears and makes a

### prejudgmentchallenge to allegedly improper service ofprocess; in that case, the original affidavits alone are reviewed for sufficiency. 

### E.g., Parkash v. Perry, 40 Wn. App. 849, 851-53, 700 P
..2d 1201 (1985). 8

### No. 34050-3-111 (consolidated w/ No. 34698-6-111) Secco v. Secco


### Our dissenting colleague finds this difference in procedure between prejudgment and postjudgment challenges anomalous, but it makes sense given the stakes at issue. Ifa defendant specially appears but defends on the basis ofinsufficient service, he or she is
aware ofthe litigation and able to defend. The inquiry therefore ends with a review of whetherthe plaintiffs submission in support ofsubstitute service was facially defective, establishing that the trial court erred in authorizing it. The stakes for the defendant do not justify looking beyond the submission to determine whetherthe plaintiffin fact fully discharged the duty to attempt personal service. By contrast, when a defaultjudgmenthas been entered that will deprive the defendant ofthe opportunity to be heard onthe merits unless set aside, the stake for the defendant-dueprocess-warrants looking at whether the circumstancesjustified substitute service infact. 

### Since the prerequisite to disfavored substitute service is thatthe "defendant cannot be found within the state," RCW4.28.100, the first inquiry for the courtpresented with a postjudgment challenge to substitute service is whether the defendant really could not be found. A central theme ofcases that address when it is fair to say a defendant cannot be found in Washington is "'that while not all conceivable means ofpersonal service have to be exhausted before service by publication is authorized, there must have been an honest and "reasonable effort"to find the defendant.'" Brenner, 

### 53 Wn. App. at 186 (quotingLongviewFibre Co. 

### v. Stokes, 

### 52 Wn. App. 241,245, 758 P.2d 1006 (1988)). 9No. 

### 34050-3-111 (consolidated w/No. 

### 34698-6-111) Secco v. Secco
This includes following up on any information possessed that might reasonably assist in locating a defendant. Id. Mr. Secco has never contendedthat because Ms. Haynes resided part time in the couple's home, she couldhave served him-he acknowledges that as a party she could not effectproper service. But as he testified in support ofhis first motion to vacate the default, "Sincewe lived inthe samehouse and [Ms. Haynes] was also aware ofmywork schedule, ifshe wanted to get me served all she had to do was have a friend, process
server or sheriffs office[ r] come over at a time that she knew I was going to be home, or have them serve me at a time she knew I was going to be at work." CP at 87. As he argued in his briefing inthetrial court, "All she hadto do is bring a process serverwith her on one ofthe nights that she was staying [atthe home], or openthe door for service of process to be effectuated." CP at 

### 196. These are validpoints that were unanswered in thetrial court. ThatMr. Secco was found atwork and arrested at 9: 17 a.m. on August 22 is evidence of justone ofthe service alternatives open to Ms. Haynes and her lawyer. Anhonest and reasonable effort includes not only following up on available information, it also means following up on available ways ofpersonally contacting a defendant. Ifthe objective was truly to accomplishpersonal service, not simply to create
a papertrail, a reasonable party wouldhave pursued one ofthe simple and obvious alternatives for personally contacting Mr. Secco. Ms. Haynes did not offer any reason for



### 10No. 

### 34050-3-111 (consolidated w/No. 

### 34698-6-111) Secco v. Secco
her failure to attempt these other means ofservice, neverproviding testimony that they wouldhave exposed herto danger as speculated by the dissent. 1 Since Ms. Haynes did not meet herburden ofdemonstrating an honest and reasonable effortto serve Mr. Secco, there is no need to reach the issue ofhis behavior.

1 The record belies speculationthat Ms. Haynes believed in February and March 

### 2014 thatproviding more assistance in serving herhusband would have placed her in danger. Mr. Secco filed a transcript ofher January 

### 20, 2015 testimony at his criminal trial for the assault she alleged occurred five to six months after the attempts at service. She testified: Q.
. .. [H]ow did the marriage fall apart? A. 

### It was gradual. He's a very negative person, kind ofhard to be around. He's an angry person. We kind offell apart, didn'thave really anything in common. I didn't like being around him anymore,justwantedto be by myself. Q. When did that start to happen that you wantedto be by yourself? 

### A. Over a year ago, maybe like the summer of' 

### 13. Q. Okay. Now, you said there were anger issues and stufflike that. Was the marriage ever violentbefore-- A. No. Q. -this incident? A. No. Q. Okay. No issues there for you in terms of-- A. No. Q. -violence? Okay. Sojustpersonality clashes? A. Yes. Q. Is that fair to say? A. Yes. 

### CP at 

### 258-59. 11No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco v. 

### Secco
WhetherMr. Secco received the summons and complaint that was allegedly mailed also need not be addressed; it is irrelevant. The trial court erred in concluding that it had personaljurisdiction overMr. Secco. Thejudgment shouldhave beenvacated as void. Mr. Secco also assigns errorto the application by the court commissioner ofthe wrong legal standardto his CR 60(b)(5) motion, pointing to the commissioner's discussion during her oral ruling ofhis failure to take earlier or different action. Since the superior court denied the revision motion without findings, conclusions, or an oral explanation, we deem the commissioner's findings and conclusions to have been adopted by the trial court. 

### See In re Marriage ofWilliams, 156 Wn. App. 22, 27-28, 232 P.3d 573 (2010). As noted earlier, there is no time limitto bring a motion to vacate a voidjudgment. The commissioner's oral comments suggesting she was mistakenly concerned about delay may have been no more than a thinking process. Her oral reasoning has no final or binding effect since no finding ofdelay was incorporated into findings, conclusions and a judgment or order. 

### State 

### v. Collins, 112 Wn.2d 303, 308, 771 P.2d 350 (1989). We review the commissioner's order, not its oral ruling. In conclusion, when a party seeks to provide notice ofits lawsuitthrough disfavored substitute service, and necessarily does so exparte, it can be required, later, to prove that it first honestly and reasonably tried to personally serve the defendant. The focus will be on its good faith effort, not on whether it was unreasonable for the 12No. 34050-3-111 (consolidated w/No. 34698-6-111) 

### Secco 

### v. Secco
defendant to refuse to respond to a knock atthe front door. Parties seeking to use substitute service should governthemselves accordingly. The order ofdefault, findings, conclusions and decree are reversed andthe matter is remanded for further proceedings.2 A majority ofthe panel has determined this opinionwill not be printed in the WashingtonAppellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

I CONCUR:

Lawrence-Berrey, A.CJ.

2 Ms. Haynes seeks an award ofattorney fees and costs onthe basis thatMr. Secco has been intransigent. We find no intransigence and deny the request. 13No. 34050-3-III (consolidated with No. 34698-6-III) KORSMO, J. (dissenting)

- The governing law most likely is as my learned colleagues state that it is, but it should notbe so. The current approach rewards those who attemptto evade service and imposes extra obligations on those attempting to serve the unwilling. Another unsettling aspect ofthis approach is to putthis court in the position ofbeing a fact-finder and determining facts differently than the trial court did. If this is whatthe law requires, it is time to do things differently. The wifepresented ample evidence that the husband evaded service. Two oftheir neighbors were regular witnesses to the service efforts and the husband's subsequent visit to the mailbox after the serverhad left the premises; they could hearthe server's pronouncements about his reasons for being there. Clerk's Papers (CP) at 145-148. 

### It is difficult to imagine that the husband did not. A person inside the house during one service effort likewise provided a declaration that the husband was aware ofthe presence ofthe process server due to a driveway alert device and had his guest (the declarant) remain silentuntil the server was gone. The husband advised his guestthat "Mel is trying to serve me." The two men even dropped to theirknees in orderto not be observed. CP at 149-150. The husband's declaration to the contrary rings quite hollow.No. 34050-3-III 

### Secco v. Secco-dissent Having considered this evidence, a court commissioner and, onrevision, a superior courtjudge, concluded that service by mail was proper. I agree and would affirm onthat basis. However, the majority says thatbecause the matterproceeded to a defaultjudgment, the focus must change from the reasons that service by mail was proper to whether ornot additional efforts at personal service could have been attempted with
some possibility ofsuccess despite Mr. Secco's repeated efforts to avoid being served. That is a disconnection in logic that my simple mind cannot follow. Moreover, this change in focus effectively collaterally attacks the decision to permit service by mail by requiring the plaintiffto come up with additional evidence tojustifythe service by mail. That also makes no sense to me. Once the service by mail statute was satisfied, there is
no reason to undermine that statute's purpose by requiring additionaljustification for using the statute by showing that other methods ofattemptingpersonal service would have been unavailing. The majority also appears to accept as true Mr. Secco's unproven allegationthat he neverreceived the service paperwork mailedto him. He claims to have neverreceived it, butthere is no evidence to support that claim (mail returned to sender, etc.). Onthis record, it appears that a trier-of-fact would have severe reasons to doubt his assertions and the superior court, understandably, never found thathe did not receive the mailing.

2

### No. 34050-3-III 

### Secco v. Secco-dissent Why the majority finds this contention believable is beyond me. More importantly, I do not understand fact-finding to be an appellate function. 1 

### Although probably not necessary to this dissent, I do wantto take issue with the contention made by the husband in argument and acknowledged by the majority, at page 9, that the wife could have facilitated service by arranging to be present and letting the process server into the house. I imagine this suggestion will send chills down the back of many victim advocates. Seldom is a strained domestic relationship more volatile than when one party is served with dissolution orprotection orderpaperwork. 

### See, e.g., Washburn v. City of Federal Way, 169 Wn. App. 588, 283 P.3d 567 (2012), 

### aff'd, 178 Wn.2d 732, 310 P.3d 1275 (2013) (affirming liability against city for murder committed when process server left victim alone with killer after serving protection order). Whether
or not Mr. Seccopresented a genuine threat to his wife, the suggestion that such a risk

1

### See State v. Hill, 123 Wn.2d 641, 644-645, 870 P.2d 313 (1994) (rejecting line of authority permitting appellate courts to undertake independent review ofthe evidence). We do not weigh the evidence under any circumstance. 

### Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959); 

### Quinn v. Cherry LaneAuto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). We similarly do not substitute ourjudgment for that ofthe trier offact. 

### Hesperian, 54 Wn.2d at 575.

3No. 34050-3-111 

### Secco v. Secco-dissent

must be undertaken to serve someone who has been resisting service should be rejected
as a matter ofpublic policy. 2 Viewing this record in a light most favorable to thejudgmentbelow, as I think we should be doing, we have the following facts: (1) 

### Mr. Secco eighttimes evaded service by people he knew were trying to serve dissolution paperwork; (2) Mr. Secco received the documents in the mail; (3) Mr. Secco did not appear in the action; (4) Mr. Secco was
even served with notice ofthe default hearing, but did not contactthe courtto explain his inability to appear. Why these facts, alone or in combination, require vacation ofthe judgment is a mystery to me. The fact that he canhypothesize other methods ofpersonal service thatpossibly might have been effective is no basis, in my mind, for forcing the plaintiffto try to establish how Mr. Secco would have been unable to avoid service if those other avenues had been attempted. She should not bearthat burden.

2 The remaining suggestion thatMr. Secco should have been served at work,just as he was arrested there many months after evading service at home, is not supported by any evidence. The record is devoid ofevidence thatMr. Secco would not have been able to continue to avoid service at work. Would his employer havepermitted a process server on the premises? Wouldthe business have been disrupted? Didhe work at a location a process server could reach without assistance ofmanagement? I wouldputtheburden on Mr. Secco, who contends this was a viable method ofservice, ofestablishing that fact. In light ofhis ongoing efforts to avoid service to thatpoint, there is no reason to think this method would have been effective. I also suspect that mostpeople otherthan Mr. Secco would rather notbe served in the presence offellow employees. 4

### No. 34050-3-111 Secco v. Secco-dissent
I would hold that when a plaintiffshows that a defendant is purposely evading service, the burden falls on the defendant to prove that the plaintiffhad more reasonable
means ofserving him that also would have overcome his best efforts at evasion. Ifwe do anything less, we simply rewardbadbehavior and render our courts less accessible to those who cannot afford to pay for around the clock efforts at serving a reluctantparty. Since our case law appears to create incentives for defendants to evade reasonable efforts at service by increasing costs and requiring more effort from plaintiffs, I respectfully dissent.

5