FILED 

NOVEMBER 16, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

MELODY SECCO (nka HA YNES), 

Respondent, 

V. 

GORDON SECCO, 

Appellant. 

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No. 34050-3-111 

( consolidated with 

No. 34698-6-111) 

UNPUBLISHED OPINION 

SIDDOWAY, J. - In successive and consolidated appeals, Gordon Secco 

challenges the superior court's denial of his motions to vacate orders entered in this 

proceeding to dissolve his marriage to Melody Haynes (formerly Melody Secco). His 

first appeal assigns error to the denial of his motion under CR 60(b )( 5) to vacate an order 

of default he contends was void for lack of personal jurisdiction. The second assigns 

error to the court's denial of a subsequent motion under CR 60(b )( 4) and (9) to vacate the 
No. 34050-3-III (consolidated w/ No. 34698-6-III) 

Secco v. Secco 

order on the basis of fraud or his inability to defend as the result of an unavoidable 

misfortune. 

The first appeal is dispositive. Mr. Secco overcomes the presumption that the 

court had jurisdiction to enter the 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 Secco petitioned for a dissolution of her 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 "cannot be found in this state" and that Ms. Haynes 

had not been able to locate or serve him because he "has concealed himself/herself to 

avoid service of summons." 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 Sheriffs Department. 2 attempts by __ ." CP at 14. 

The motion was also supported by a sheriffs return of service stating that "[a]fter 

diligent search and inquiry" the signatory deputy sheriff had been unable to serve Gordon 

Secco at 8010 E. Augusta Avenue in Spokane Valley (the couples' home address), 

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Secco v. Secco 

indicating "five attempts made." CP at 17. A further declaration from Mark Cavadini, 

who described himself as a friend of Ms. Haynes, declared: 

Try to serve paper on the following date 

Feb 18, 2014 at time of3:00 pm 

Feb 19, 2014 at time of 1:30 pm 

Feb 20, 2014 at time of 2:00 pm 

At Every attempt I could hear noise inside of the house, But no answer! 

Address 8010 E. Augusta Ave. Spokane, WA 

CP at 15. 

Undisclosed in the declarations was the fact that Ms. Haynes continued to reside at 

the couple's home at least part time during the early February to early April time frame 

when service of process was being attempted. According to Mr. Secco, during that time, 

"I shared the same home 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 most part she was 

staying with her daughter or in a rental home owned by her ex-husband during that time 

frame, but she admits to staying at her and Mr. Secco's home once or twice a week. The 

"once or twice 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 belief it would advance her legal position in the property division. 

CP at 160. 

An ex parte 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. 

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No. 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 their home address. Mr. Secco 

nonetheless claims he never received them. 

On July 9, 2014, Ms. Haynes moved for and was granted an order of default. 

Six weeks later, on the morning of August 22, Mr. Secco and Ms. Haynes were 

both at the couple's home before going to work when Mr. Secco slammed a door into Ms. 

Haynes' s foot, breaking a bone. She claims he engaged in an extended assault that began 

with pushing her down the stairs and concluded with 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 went to work but was 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 

sheriff located Mr. Secco at his place of work 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 of a final 

divorce decree for October 27. Notwithstanding the default order, her lawyer arranged 

for service of the materials to be presented on Mr. Secco at the correctional facility where 

he was detained. Mr. Secco claims this is when he first learned of the divorce action. 

According to Mr. Secco, after being served at the correctional facility, he attempted to 

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

Secco v. Secco 

contact two attorneys but having no access to funds, he was unable to pay a retainer. He 

also claims to have tried to make bail, but bail bond companies considered him a flight 

risk since he is a Canadian citizen. 

At the presentment on October 27, the trial court entered findings of fact and 

conclusions of law and signed the final decree of dissolution. Ms. Haynes requested and 

was awarded the entire interest in the couple's home, which Mr. Secco contends was their 

most significant asset. The final orders were mailed to Mr. Secco on November 10. 

Mr. Secco was acquitted of the 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 of default should not be vacated, arguing that the 

trial court never acquired personal jurisdiction over him and the default and later orders 

were void under CR 60(b)(5). A court commissioner denied the motion, commenting in 

her oral decision on Mr. Secco's delay in seeking relief and his failure to take action in 

response to the materials he admitted receiving in October 2014. The written order 

prepared by counsel and entered by 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 why this matter should be vacated." CP at 166. A motion for 

revision was filed and denied, with the superior court stating only, "I'm going to decline 

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I 

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Secco v. Secco 

to revise the commissioner." Report of Proceedings (RP) (Dec. 3, 2015) at 23. Mr. 

Secco filed his first appeal. 

Five-and-a-half months later, with the first appeal pending, Mr. Secco sought a 

second order to show cause why the default decree of dissolution should not be vacated, 

this time relying on CR 60(b)(4) (providing relief for "[f]raud ... , misrepresentation, or 

other misconduct of an adverse party") and CR 60(b )(9) (providing relief for 

"[u]navoidable casualty or misfortune preventing the 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 of evidence of all nine elements of common law fraud. 

Mr. Secco filed his second appeal. We consolidated it with the first. 

ANALYSIS 

Mr. Secco's first appeal, assigning error to his motion to the denial of his motion 

to vacate the trial court's orders and judgment as void, is dispositive. There is no need to 

address the second. 

Service of process by means other than personal service, i.e., constructive and 

substitute service, "is in derogation of the common law and cannot be used when 

personal service is possible." Rodriguez v. James-Jackson, 127 Wn. App. 139, 143, 111 

P.3d 271 (2005). "When the defendant cannot be found within the state," however, and 

an affidavit is filed asserting that fact and other prerequisites, the court may authorize 

service by publication. RCW 4.28.100. By court rule, if the circumstances justify 

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Secco v. Secco 

service by publication and the serving party files an affidavit stating facts from which the 

court determines that service by mail is just as likely to give actual notice as service by 

publication, the court may order service by mail. CR 4( d)( 4 ). 

Strict compliance with the statute authorizing service by publication is required for 

either type of substitute service. Compliance in this case required two things, the first 

being that Mr. Secco could not be found within the state in fact, which is established by 

demonstrating Ms. Haynes's honest and reasonable effort to 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 of Washington; and (3) he either left the state or 

concealed himself within 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 last resort, the 

affidavit must provide the specific facts supporting the required assertions, not 

conclusory statements, and the authorizing judge 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 of an order of 

default and default judgment, the defendant may move to set aside the judgment as void 

for lack of personal jurisdiction. CR 60(b)(5); Vukich v. Anderson, 97 Wn. App. 684, 

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No. 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 default judgment that proper 

service of process 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 plaintiff to produce evidence that a reasonable search was made. Id. 

at 187. If service was not proper, dismissal is required even where a defendant has actual 

notice of the lawsuit. In re Marriage of Logg, 74 Wn. App. 781,784,875 P.2d 647 

( 1994 ). There is no time limit to bring a motion to vacate a void judgment. 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 void judgments, 

a trial court's decision to grant or deny a motion to vacate a default judgment for want of 

jurisdiction is reviewed de novo. Ahten v. Barnes, 158 Wn. App. 343,350,242 P.3d 35 

(2010). The issue before the court in a postjudgment CR 60(b) motion is not the 

sufficiency of the original affidavits but "what in fact did the plaintiff do before seeking 

[substitute] service." Brennan v. Hurt, 59 Wn. App. 315, 319, 796 P.2d 786 (1990). 

What in fact happened can be supported by supplemental affidavits. Id. This is unlike 

the situation where the defendant specially appears and makes a prejudgment challenge to 

allegedly improper service of process; 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). 

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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. If a 

defendant specially appears but defends on the basis of insufficient service, he or she is 

aware of the litigation and able to defend. The inquiry therefore ends with a review of 

whether the plaintiffs submission in support of substitute 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 whether the plaintiff in fact fully 

discharged the duty to attempt personal service. 

By contrast, when a default judgment has been entered that will deprive the 

defendant of the opportunity to be heard on the merits unless set aside, the stake for the 

defendant-due process-warrants looking at whether the circumstances justified 

substitute service in fact. 

Since the prerequisite to disfavored substitute service is that the "defendant cannot 

be found within the state," RCW 4.28.100, the first inquiry for the court presented with a 

postjudgment challenge to substitute service is whether the defendant really could not be 

found. A central theme of cases that address when it is fair to say a defendant cannot be 

found in Washington is "' that while not all conceivable means of personal 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 

(quoting Longview Fibre Co. v. Stokes, 52 Wn. App. 241,245, 758 P.2d 1006 (1988)). 

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No. 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 contended that because Ms. Haynes resided part time in the 

couple's home, she could have served him-he acknowledges that as a party she could 

not effect proper service. But as he testified in support of his first motion to vacate the 

default, "Since we lived in the same house and [Ms. Haynes] was also aware of my work 

schedule, if she 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 in the trial court, "All she had to do is bring a process server with 

her on one of the nights that she was staying [at the home], or open the door for service of 

process to be effectuated." CP at 196. These are valid points that were unanswered in 

the trial court. That Mr. Secco was found at work and arrested at 9: 17 a.m. on August 22 

is evidence of just one of the service alternatives open to Ms. Haynes and her lawyer. 

An honest and reasonable effort includes not only following up on available 

information, it also means following up on available ways of personally contacting a 

defendant. If the objective was truly to accomplish personal service, not simply to create 

a paper trail, a reasonable party would have pursued one of the simple and obvious 

alternatives for personally contacting Mr. Secco. Ms. Haynes did not offer any reason for 

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

Secco v. Secco 

her failure to attempt these other means of service, never providing testimony that they 

would have exposed her to danger as speculated by the dissent. 1 

Since Ms. Haynes did not meet her burden of demonstrating an honest and 

reasonable effort to serve Mr. Secco, there is no need to reach the issue of his behavior. 

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

2014 that providing more assistance in serving her husband would have placed her in 

danger. Mr. Secco filed a transcript of her 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 of hard to be around. 

He's an angry person. We kind of fell apart, didn't have really anything in 

common. I didn't like being around him anymore, just wanted to be by myself. 

Q. When did that start to happen that you wanted to be by yourself? 

A. Over a year ago, maybe like the summer of ' 13. 

Q. Okay. Now, you said there were anger issues and stuff like that. Was the 

marriage ever violent before--

A. No. 

Q. -this incident? 

A. No. 

Q. Okay. No issues there for you in terms of--

A. No. 

Q. -violence? Okay. So just personality clashes? 

A. Yes. 

Q. Is that fair to say? 

A. Yes. 

CP at 258-59. 

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

Secco v. Secco 

Whether Mr. 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 

personal jurisdiction over Mr. Secco. The judgment should have been vacated as void. 

Mr. Secco also assigns error to the application by the court commissioner of the 

wrong legal standard to his CR 60(b)(5) motion, pointing to the commissioner's 

discussion during her oral ruling of his 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 of Williams, 156 Wn. App. 22, 27-28, 232 P.3d 573 

(2010). 

As noted earlier, there is no time limit to bring a motion to vacate a void judgment. 

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 of delay 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 of its lawsuit through 

disfavored substitute service, and necessarily does so ex parte, 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 

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

Secco v. Secco 

defendant to refuse to respond to a knock at the front door. Parties seeking to use 

substitute service should govern themselves accordingly. 

The order of default, findings, conclusions and decree are reversed and the matter 

is remanded for further proceedings.2 

A majority of the panel has determined 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. 

I CONCUR: 

Lawrence-Berrey, A.CJ. 

2 Ms. Haynes seeks an award of attorney fees and costs on the basis that Mr. Secco 

has been intransigent. We find no intransigence and deny the request. 

13 
No. 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 not be so. The current approach rewards those 

who attempt to evade service and imposes extra obligations on those attempting to serve 

the unwilling. Another unsettling aspect of this approach is to put this court in the 

position of being a fact-finder and determining facts differently than the trial court did. If 

this is what the law requires, it is time to do things differently. 

The wife presented ample evidence that the husband evaded service. Two of their 

neighbors were regular witnesses to the service efforts and the husband's subsequent visit 

to the mailbox after the server had left the premises; they could hear the 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 of the presence 

of the process server due to a driveway alert device and had his guest (the declarant) 

remain silent until the server was gone. The husband advised his guest that "Mel is 

trying to serve me." The two men even dropped to their knees in order to 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, on revision, a 

superior court judge, concluded that service by mail was proper. I agree and would 

affirm on that basis. However, the majority says that because the matter proceeded to a 

default judgment, the focus must change from the reasons that service by mail was proper 

to whether or not additional efforts at personal service could have been attempted with 

some possibility of success despite Mr. Sec co' 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 plaintiff to come up with additional evidence to justify the 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 additional justification for 

using the statute by showing that other methods of attempting personal service would 

have been unavailing. 

The majority also appears to accept as true Mr. Secco's unproven allegation that 

he never received the service paperwork mailed to him. He claims to have never received 

it, but there is no evidence to support that claim (mail returned to sender, etc.). On this 

record, it appears that a trier-of-fact would have severe reasons to doubt his assertions 

and the superior court, understandably, never found that he 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 want to 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 or protection order paperwork. 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. Secco presented 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 of the 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 Lane Auto Plaza, Inc., 153 

Wn. App. 710, 717, 225 P.3d 266 (2009). We similarly do not substitute our judgment for 

that of the trier of fact. Hesperian, 54 Wn.2d at 575. 

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No. 34050-3-111 

Secco v. Secco-dissent 

must be undertaken to serve someone who has been resisting service should be rejected 

as a matter of public policy.2 

Viewing this record in a light most favorable to the judgment below, as I think we 

should be doing, we have the following facts: (1) Mr. Secco eight times 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 of the default hearing, but did not contact the court to explain his 

inability to appear. Why these facts, alone or in combination, require vacation of the 

judgment is a mystery to me. The fact that he can hypothesize other methods of personal 

service that possibly might have been effective is no basis, in my mind, for forcing the 

plaintiff to try to establish how Mr. Secco would have been unable to avoid service if 

those other avenues had been attempted. She should not bear that burden. 

2 The remaining suggestion that Mr. 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 of evidence that Mr. Secco would not have been able to 

continue to avoid service at work. Would his employer have permitted a process server on 

the premises? Would the business have been disrupted? Did he work at a location a 

process server could reach without assistance of management? I would put the burden on 

Mr. Secco, who contends this was a viable method of service, of establishing that fact. In 

light of his ongoing efforts to avoid service to that point, there is no reason to think this 

method would have been effective. I also suspect that most people other than Mr. Secco 

would rather not be served in the presence of fellow employees. 

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I would hold that when a plaintiff shows that a defendant is purposely evading 

service, the burden falls on the defendant to prove that the plaintiff had more reasonable 

means of serving him that also would have overcome his best efforts at evasion. If we do 

anything less, we simply reward bad behavior and render our courts less accessible to 

those who cannot afford to pay for around the clock efforts at serving a reluctant party. 

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. 

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