### FILED OCTOBER 16, 2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re the Adoption of ) No. 32289-1-111 ) ) H.M.G., ) UNPUBLISHED OPINION ) A person under the age ofeighteen. ) LAWRENCE-BERREY, 

### J.

- H.G.'s father and stepmotherpetitioned to adoptH.G. and to tenninate H.G.'smother'sparental rights. Eventually, thepetitioners obtained a default order. Upon learning ofthis, the mothermoved to set aside the default order. The lower court denied the mother's motion. The dispositive question raised in this appeal is whether the motherwas entitled to five days' written noticepriorto entry ofthe default order. We hold thatthe mother appearedpreviously in the action, that she was entitled to five days' written noticeprior to the entry ofthe default order, and thatthe trial court abused its discretion when it refused to vacate the default order and subsequent final pleadings. We therefore reverse. FACTS P.P. (the mother) and K.G. (the father) are theparents ofH.G., born on May 7, 2007. The couple nevermarried and a custody battle ensued after theparents separated 

### in

### No. 32289-1-III In reAdoption of H.M

### G. September 2007. On August 16,2008, the father married C.G. (the stepmother). H.G. has resided with his father and stepmother since April 2008. Due to concerns aboutthe mother's care ofH.G., the father was awarded full custody in 2008. In June 2010, the trial court entered a final parentingplan and designated the father as H.G.'sprimary custodian. The courtrestricted the mother's contactwith H.G. based on numerous factors. On April 25, 2011, the father and stepmother filed petitions to adopt H.G. and for termination ofthe mother'sparental relationship with H.G., citing the mother's failure "toperformparental duties under circumstances showing a substantial lack ofregard for her parental obligations." Clerk's Papers (CP) at 10. The mother filed a response to the petition on June 7, 2011, and denied any basis for adoption ofH.G. orthe termination ofher parental rights. In December 2011, the trial court dismissed the petitions without prejudice to allow the mother time to address herparental deficiencies. On March 9,2012, the mother was personally served in a courtroom with the amended summons for termination, the amended petition for adoption, and the amended petition for termination. The same cause number was used by the petitioners, despite the fact that the matter had been previously dismissed. The summons stated that in order to defend against the petition, the mother "mustrespond to thepetitionby stating [her]
2No. 32289-I-II1 

### In re Adoption ofHMG.
defense in writing and by serving a copy upon the petitioners at the address below within twenty (20) days after the date ofservice."1 CP at 95. The mother did notrespond. On April 3, the father and stepmothermoved for an order ofdefault against the mother. On April 5, a superior court commissioner entered a default order. On May 3­ presumablybecause they noticed that the matter had been previously dismissed-the father and stepmother successfully moved to vacate the December 2011 order of dismissal. On April 27, the trial court entered findings offact and conclusions oflaw supporting the petitions for adoption and termination ofthe mother's parental rights. On May 31, the mother, pro se, filed a motion to vacate the commissioner's default order. In her statement ofgrounds for review, she alleged that she gave responsive documents to her father to mail, but that he forgot to mail them due to the death ofhis dog
on the same day. She also noted that she had not been served with the motion for default. On June 12, a court commissioner denied the mother's motion to vacate the default order. On June 28, the mother filed a CR60 motion for relieffromjudgmentor order. She argued that she had answered the original petition, and that she had notreceived notice ofthe motion for order ofdefault. The superior court denied the motion and

J A party generally has only 10 days to answer an amended pleading. CR 15(a). However, the longer 20-dayperiod applies here, given the language in the amended summons. 3No. 32289-1-II1 

### In re Adoption ofHMG.
awarded the petitioners' attorney fees. The mother moved for reconsideration. The superior court denied reconsideration, and the mother timely appealed. ANALYSIS The issue is whether the trial court erred in denying the mother's motion to vacate the default order. She asserts several bases to vacate the default order: (1) lack of default status at the time ofthe default orderbecause she answered the original complaint, (2) improper notice ofthe motion for default, and (3) excusable neglect. 

### Standardof Review Generally, we review a trial court's default orders for an abuse ofdiscretion. CR 55(c)(l); 

### Clarke v. 

### Office of Attorney Gen., 133 Wn. App. 767, 777, 138 P.3d 144 (2006). We will not disturb the trial court's decision unless it was manifestly unreasonable or based onuntenable grounds or untenable reasons. 

### Mecum v. 

### Pomiak, 119 Wn. App. 415, 422,81 P.3d 154 (2003). However, ifa court enters an order of default where an appearing party was notprovided propernotice, the defaulting party is entitled to have thejudgment set aside as a matter ofright. CR 55(a)(3); 

### Batterman v. 

### RedLion Hotels, Inc., 106 Wn. App. 54, 58-59,21 P.3d 1174 (2001), 

### abrogatedon other grounds byMorin v. 

### Burris, 160 Wn.2d 745, 161 P.3d 956 (2007).

4No. 32289-1-III 

### In reAdoption of HM

### G. Appearance andNotice CR 55(a)(l)provides that a defaultjudgmentmay be entered against a party who has "failedto appear, plead, or otherwise defend as provided by these rules." A defendant in a civil actionmust serve her answerwithin 20 days ofbeing served with a summons and complaint. CR4(a)(2). CR 55(a)(3) provides in relevantpart, "[a]ny party who has appeared in the action for any purpose shall be servedwith a written notice ofmotion for default
... at least 5 days before the hearing on themotion." A party need not formally appear in order to be entitledto notice ofa motion for default under CR55. 

### Rosander v. 

### Nightrunners Transp., Ltd., 147 Wn. App. 392, 399, 196 P.3d 711 (2008). For a defendant's alleged informal appearance to require notice of any motion for default under CR 55(a)(l), it must amountto conductthat "was designed to and, in fact, did apprisethe plaintiffs ofthe defendants' intent to litigate the case[ ]." 

### Morin, 160 Wn.2d at 755. This conduct must occur after the lawsuit is commenced. 

### Id. "[M]ere intentto defend, whether shown before or after a case is filed, is not enough; the defendantmust go beyond merely acknowledging that a 

### dispute exists and instead acknowledge that a dispute exists in 

### court." Id. at 756. "Atrial courthas no authority to enter a defaultjudgment against a party who has appeared but did notreceive propernotice." 

### Rosander, 147 Wn. App. at 399. Ifthe facts
5No. 32289-I-II1 In re Adoption of H.MG.
that are claimedto amount to an appearance are undisputed, we review de novo whether
an appearance is established. Meade v. Nelson, 174 Wn. App. 740, 750, 300 PJd 828, review denied, 178 Wn.2d 1025 (2013). Here, the mother appearedwhen she filed a response to the original petition on June 7, 20II. This is not contested. Although that petition was dismissed, the dismissal
was later vacated at the request ofthe father and stepmother. Because the motherhad appeared in the action, petitioners were required to provide five days' written notice prior tothe entry ofa default order. This, thepetitioners failed to do. The commissionerwas therefore without authority to enterthe default order. Becausethe default order was improper, the subsequent orders and decree entered by the superior court also were improper. The superior court erred when it denied the mother's CR60 motion. We therefore reverse. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040. 

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