FILED 


OCTOBER 16, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, 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H.M.G., ) UNPUBLISHED OPINION 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 of eighteen. ) 

LAWRENCE-BERREY, J. - H.G.'s father and stepmother petitioned to adopt H.G. 

and to tenninate H.G.'s mother's parental rights. Eventually, the petitioners obtained a 

default order. Upon learning ofthis, the mother moved to set aside the default order. The 

lower court denied the mother's motion. 

The dispositive question raised in this appeal is whether the mother was entitled to 

five days' written notice prior to entry ofthe default order. We hold that the mother 

appeared previously in the action, that she was entitled to five days' written notice prior 

to the entry ofthe default order, and that the 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 the parents ofH.G., born on May 7, 

2007. The couple never married and a custody battle ensued after the parents separated in 
No. 32289-1-III 


In re Adoption ofH.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 about the mother's care ofH.G., the father was awarded full 

custody in 2008. In June 2010, the trial court entered a final parenting plan and 

designated the father as H.G. 's primary custodian. The court restricted the mother's 

contact with H.G. based on numerous factors. On April 25, 2011, the father and 

stepmother filed petitions to adopt H.G. and for termination of the mother's parental 

relationship with H.G., citing the mother's failure "to perform parental duties under 

circumstances showing a substantial lack of regard 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. or the termination of her parental rights. In 

December 2011, the trial court dismissed the petitions without prejudice to allow the 

mother time to address her parental 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 "must respond to the petition by stating [her] 

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No. 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 of service."1 CP at 95. The mother did not respond. 

On April 3, the father and stepmother moved for an order of default against the 

mother. On April 5, a superior court commissioner entered a default order. On May 3­

presumably because 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 of fact and conclusions of law 

supporting the petitions for adoption and termination of the mother's parental rights. 

On May 31, the mother, pro se, filed a motion to vacate the commissioner's default 

order. In her statement of grounds 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 of his 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 CR 60 motion for relief from judgment or order. 

She argued that she had answered the original petition, and that she had not received 

notice of the motion for order of default. 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-day period applies here, given the language in the amended 

summons. 

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No. 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 of the default order because she answered the original complaint, 

(2) improper notice ofthe motion for default, and (3) excusable neglect. 

Standard ofReview 

Generally, we review a trial court's default orders for an abuse of discretion. 

CR 55(c)(l); Clarke v. Office ofAttorney 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 on untenable grounds or untenable reasons. Mecum v. Pomiak, 

119 Wn. App. 415, 422,81 P.3d 154 (2003). However, if a court enters an order of 

default where an appearing party was not provided proper notice, the defaulting party is 

entitled to have the judgment set aside as a matter of right. CR 55(a)(3); Batterman v. 

Red Lion Hotels, Inc., 106 Wn. App. 54, 58-59,21 P.3d 1174 (2001), abrogated on other 

grounds by Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007). 

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No. 32289-1-III 


In re Adoption ofHM G. 


Appearance and Notice 

CR 55(a)(l) provides that a default judgment may be entered against a party who 

has "failed to appear, plead, or otherwise defend as provided by these rules." A defendant 

in a civil action must serve her answer within 20 days of being served with a summons 

and complaint. CR 4(a)(2). CR 55(a)(3) provides in relevant part, "[ a]ny party who has 

appeared in the action for any purpose shall be served with a written notice of motion for 

default ... at least 5 days before the hearing on the motion." 

A party need not formally appear in order to be entitled to notice of a motion for 

default under CR 55. 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 amount to conduct that "was designed 

to and, in fact, did apprise the 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 intent to defend, whether shown before or after a case is filed, is not enough; the 

defendant must go beyond merely acknowledging that a dispute exists and instead 

acknowledge that a dispute exists in court." Id. at 756. 

"A trial court has no authority to enter a default judgment against a party who has 

appeared but did not receive proper notice." Rosander, 147 Wn. App. at 399. Ifthe facts 

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No. 32289-I-II1 

In re Adoption ofH.M G. 

that are claimed to 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 appeared when she filed a response to the original petition on 

June 7, 20 II. This is not contested. Although that petition was dismissed, the dismissal 

was later vacated at the request of the father and stepmother. Because the mother had 

appeared in the action, petitioners were required to provide five days' written notice prior 

to the entry of a default order. This, the petitioners failed to do. The commissioner was 

therefore without authority to enter the default order. Because the 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 CR 60 motion. We 

therefore reverse. 

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. 

r---\ () 

Lawrence-Berrey, 1. 

5;dd~?U~j (!0= 


Siddoway, C.J. 

6