### IN THE COURT OF APPEALS FOR THESTATE OFWASHINGTON ^ Inthe Matter ofthe Marriage of ANDREA Z. JOLLES, Respondent, and MARK P. CAVENER, 

### Appellant. No. 70617-9-1 DIVISION ONE

UNPUBLISHED OPINION C--1 ~u"* o — .1"";. • ^-,J T: oo r-'; !!?•"'* _JU -_--1_~ s 3 c^

FILED: June 30, 2014 Schindler, J. — Mark P. Cavener repeatedly failed to file a response to Andrea Z. Jolles' petition to modify the parenting plan and child support order. A court commissioner entered an order ofdefault. The superior court denied Cavener's motion to vacate the default under CR 60(b). Because Cavener does not demonstrate a conclusive or strong defense to the petition or the otherfactors under CR 60(b), we affirm. FACTS Mark P. Cavener and Andrea Z. Jolles married in 2001, had a child together, and divorced in 2003. The parenting plan provided that L.C. would live with Jolles 

### approximately 55 percent of the time and withCavenerthe remainder of the time. In August 2010, Jolles filed a petition for an order of protection. Jolles alleged that Cavener had been violent and abusive during the marriage and that she feared forNo. 70617-9-1/2 

### her safety due to his recent "escalating anger" and violence. Jolles described specific 

### incidents where Cavener spit in her face when dropping offL.C, threw a "heavy brass candlestick" at herwhile he was holding 4-month-old L.C, threw a chair across the bedroom where L.C. was sleeping, grabbed Jolles' wrist and twisted it until he bruised 

### her arm, pushed and intimidated her, and forcibly took the phone from her and ripped the cord out ofthe wall. Jolles alleged the most recent incident occurred in July 2010 when Jolles' father attempted to serve documents on Cavener inthe courthouse. 

### Cavener allegedly grabbed Jolles' father, pressed him against a wall, and threatened him. Jolles also alleged that Cavener had been making threatening phone calls and sending her "menacing texts" and "angry accusing emails." On August 30, 2010, the court entered the first of a series oftemporary orders of protection. In November 2010, Debra Hunter of King County Superior Court Family Court Services (FCS) conducted a domestic violence assessment. Hunter concluded thatthe protection order should continue and should include L.C. Hunter recommended that Cavener have limited residential time with L.C. until he received six months ofdomestic violence treatment.1 Following a contested hearing on December 20, 2010, the court entered a oneyear domestic violence protection order. The order relied in part on Hunter's domestic violence assessment and required Cavenerto obtain domestic violence treatment. Cavener filed a motion for revision. The court denied the motion.

1Cavener provided only 2 pages ofHunter's 14-page reportfor purposes of this appeal. 2No. 70617-9-1/3
In November 2011, Jolles filed a petition to renew the domestic violence protection order. In herdeclaration in support, Jolles alleged, among otherthings, that Cavener had not received domestic violence treatment as required by the prior order of protection. Cavenertestified at the January 2012 hearing on the motion to renew the protection order. The court entered a protection order requiring supervised visitation with L.C. but allowed unsupervised visitation once Cavenercompleted domestic violence treatment. The order stated that Jolles could request modification ofthe 

### parenting plan ifCavenerfailed to complete court-ordered treatment or counseling. Cavener moved to revise the order but the court denied the motion. Cavener then filed


### an appeal in this court. We dismissed the appeal for failure to file a designation of clerk's papers and a statement ofarrangements. 

### On January 13, 2012, Jolles filed a petition to modify the parenting plan and child support. On February 9, Cavener appeared at the hearing on Jolles' petition but claimed he did not receive service ofprocess. The court continued the hearing. 

### On February 15, Jolles moved for default, arguing that Cavener had failed tofile
a response to her petition. The court denied Jolles' motion. On March 21, 2012, Jolles served Cavener again. The return ofservice indicates that on March 21, Cavener received the summons, petition for modification, case schedule, and proposed orders. 

### OnApril 12,Jolles sent a letter to Cavener requesting a responseto herpetition and cooperation infiling a confirmation ofissues.No. 70617-9-1/4 

### On May 11, 2012, Jolles again filed a motion for an order ofdefaultfor failure to 

### file a response to her petition. Jolles also filed a notice of hearing for a determination of adequate cause to modify the parenting plan. A hearing was setfor May31. Jolles filed a declaration of mailing indicating that she mailed Cavener all pleadings and 

### proposed orders related to the motion for a default orderand the adequate cause 

### hearing on May 10. The record includes a May 12, 2012 delivery confirmation from the postal service. 

### On May 24, 2012, Cavenerfiled a pro se motion to dismiss the action due to lack ofpersonaljurisdiction, improper service, and impropervenue. 

### At the May 31 hearing on adequate cause, a court commissionerconsidered Cavener's motion to dismiss. Jolles alleges, and Cavenerdoes notdispute, that Cavenertold the commissioner he contested only service of the motion foradequate 

### cause, not service ofprocess as to Jolles' petition. Consistentwith Jolles' allegation, the commissioner ruled that "service ofprocess is required for original process only. 

### Therefore, service is not a legal issue. Respondentwas served." The clerk's minutes state that the court then continued the hearing to June 14 "to allow [Cavener] to 

### respond" toJolles' petition. Theorderstates that"responding party's documents shall be delivered to the moving party not later than 12:00[ ]noon on June 8, 2012." OnJune 1, 2012, Jolles appeared at a status conference hearing. Cavener did 

### not appear. Thecourtcontinued the "adequate cause deadline" toAugust 13. OnJune 14, 2012, the court commissionerentered an order of default. The order states that Cavener received notice of the hearing and "was given the opportunityNo. 70617-9-1/5



### to respond. He failed to do so."2 The court entered orders modifying the parenting plan and child support. Although the final amended parenting plan is not inthe record before this court, the record indicates that the parenting plan imposed RCW 26.09.191 restrictions, including supervised visitation, due to Cavener's history ofdomestic violence. The order granting modification states, in pertinent part: A Domestic Violence Orderfor Protection [(DVPO)] was entered in December, 2010 finding that the Father presented a risk ofimminent harm to the Mother and child. A Risk Assessment was conducted . . . finding thatthe Father presented risk to the child and recommending domestic violence batterer's treatment. Subsequentto the entry ofthe DVPO, the Respondent/Father participated in an intake with domestic violence treatment program AngerTreatment Control Treatment &Therapies deemed the Father not amenable to treatment and refused to admit him into their program. The Father is presently an untreated battererwho presents a substantial risk of harm to the Mother and child. Additional facts are setforth in the Mother's declaration
. . . which are incorporated as ifsetforth fully herein.

The Father presents a risk of imminent harm to the child. The child's contact with the Father should be suspended until the Father has completed state certified domestic violence treatment and DVDad's at Wellspring Family Services. 

### On April 29, 2013, Cavenerfiled a motion to vacate the order ofdefault under CR 60(b). Cavener argued thatthe order "was unwarranted, punitive, excessive, and the 

### likely result [of] bias on the part of the court." Cavener claimed he was denied due process prior to the default and challenged the priorprotection orders and the 

### restrictions in the finalparenting plan. Withrespectto the restrictions, Cavenerargued

2Under CR 55(a)(1), a court may enter a default when a defendant "has failed to appear, plead, or otherwise defend as provided by these rules."No. 70617-9-1/6 they were entered "for no good cause," without the input of a guardian ad litem, and without adequately considering the best interests ofthe child. Atthe hearing on the motion to vacate, Cavener's attorney conceded Cavener did not file a response to the petition but argued entering an order ofdefault restricting his parental rights was a "gross overreaction." The attorney noted that Cavener had appeared at numerous hearings and that the court made no findings supporting restrictions under RCW 26.09.191. Jolles' attorney countered thatthe court repeatedly ordered Cavenerto respond to the petition but he failed to do so: This was a process that started in January, and [Cavener] was not defaulted until June. And there were multiple court hearings in between. . . . [N]o reasonable person would go six months and go to three court hearings and continually refuse to enter pleadings and filethe correct documents and then wonder why the case was dismissed. The court denied the motion to vacate. The court acknowledged that the law disfavors defaultjudgments, that a motion to vacate a default is equitable in nature, and that the issues inthe present case involved rights that are constitutional in nature. Nonetheless, as the court pointed out, a party moving to vacate a defaultjudgmentmust 

### show substantial evidence supporting a prima facie defense to the claims asserted, the
reason for their failure to timely appear or respond, their diligence followingnotice ofthe default, and the effect ofvacating thejudgmenton the opposing party. The court concluded Cavenerfailed to demonstrate a prima facie defense, presented no excuse 

### for his failure to respond to the petition, and was not diligent filing the motion to vacate the default. Cavener appeals.No. 70617-9-1/7

ANALYSIS The sole issue on appeal is whetherthe superior court abused its discretion in denying Cavener's motion to vacate the order ofdefault under CR 60(b). Default judgments are "generally disfavored inWashington based on an overriding policy which prefers that parties resolve their disputes on the merits." Showalterv. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004). But courts "also value an organized, 

### responsive, and responsiblejudicial system where litigants acknowledge thejurisdiction ofthe courtto decide their cases and comply with court rules." Little v. King, 160Wn.2d 696, 703, 161 P.3d 345 (2007). Acourt "must balance the requirementthat each party 

### followprocedural rules with a party's interest in a trial on the merits." Showalter. 124 

### Wn. App. at 510. Review of a decision on a motion to vacate is limited to the trial court's decision, not the underlying orderthatthe party seeks to vacate. Biurstrom v. 

### Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980). The court's decision will be 

### disturbed onlyifitabused its discretion. Akhavuz v. Moody, 178 Wn. App. 526, 532, 315 P.3d 572 (2013). Inthis case, Cavener moved to vacate the default order under CR 60(b). 

### Specifically, Cavener sought tovacate the order on the grounds of"[mjistake, inadvertence, surprise, excusable neglect orirregularity," CR 60(b)(1), or "[a]ny other
reasonjustifying relieffrom the operation of the judgment," CR 60(b)(11). The parties 

### agree that when a motion to vacate is sought onthese grounds, the moving party must 

### demonstrate (1) there is substantial evidence to support a primafacie defense; (2) the 

### failure totimely appear or respond was occasioned bymistake, inadvertence, surprise,No. 70617-9-1/8



### orexcusable neglect; (3) the moving party acted with due diligence after notice of the default; and (4)the opposing party will not suffer substantial hardship ifthe trial court vacates the default. See, e^, Little. 160 Wn.2d at 703-07 (applying the fourfactors when motion to vacate was brought pursuantto CR 60(b)(1)); Topliff v. Chicago Ins. Co.. 130 Wn. App. 301, 304-08, 122 P.3d 922 (2005) (applying factors when motion to vacate was brought pursuantto CR 60(b)(11)). Cavener contends the superiorcourt misapplied these factors. We disagree. The first two factors are the "primary" factors. Little. 160Wn.2d at 704. When 

### evaluating the first factor, we view the evidence in the light most favorable to the moving party. Pfaffv. State Farm Mut. Auto. Ins. Co.. 103 Wn. App. 829, 835, 14 P.3d 837 (2000). Ifthe moving party is able to demonstrate a strong orvirtually conclusive 

### defense, courts will generally spend little timeinquiring into the reasons for the default. Akhavuz, 178Wn. App. at 533. If, on the other hand, the moving party is unable to 

### show a strong defense, the reasons for default, the timeliness of the motion to vacate, and the prejudice to the opposing partywill be morecarefully scrutinized. Akhavuz. 178 Wn. App. at 533. 

### The superior court concluded that Cavenerdid not demonstrate a primafacie defense to the claims underlying the orders entered by default. In its oralruling, the court noted that the 2012 renewal of the protection ordermeant that Cavenerhad failed 

### tocarry hisburden ofshowing "whythere isn't a substantial likelihood ofcontinuing behaviorwarranting a domesticviolence restraining order." The court'swritten decisionNo. 70617-9-1/9
states, in pertinent part: 

### Respondent's counsel has presented a notebook ofmaterials going back several years to supportthe claimthat itwas error for King County Superior Court CommissionerMeg Sassaman to include the parties' child in a Domestic Violence (DV) Protection Orderentered in Decemberof 

### 2010. That orderwas not appealed orchanged on appeal (a notice of appeal was filed but not acted on by the Respondent) and was not changed on father's Motion for Revision. That Protection Orderwas renewed inJanuary of2012. 

### Nevertheless, Cavenercontends there is "no question [he] could have mounted a 

### spirited and credible defense" againstthe petition for modification of the parenting plan, and "could have certainly counted on a trial court's discretionary powers to determine thatthe evidence did not warrant his being deprived ofimmediate unsupervised contact and extensive time with his child even if [RCW 26.09]. 191 factors were present."3 We disagree. Restrictions inparenting plans under RCW 26.09.191 are mandatory ifthe court finds "a history of acts ofdomestic violence as defined in RCW 26.50.010(1)." RCW 

### 26.09.191 (2)(a)(iii).4 Here, the undisputed record shows thatthe domestic violence protection order entered in 2010 found that Cavener "committed domestic violence as defined in RCW 26.50.010" and presented a risk of harm to Jolles and L.C. That order
was based on a 14-page FCS domestic violence assessment. Only 2 ofthe 14 pages 

### are a part of this record.5 Furthermore, as noted above, the court renewed the

3Emphasis in original. 4RCW26.50.010(1) defines "domestic violence" as the following conduct committed against a family or household member: (a) a physical assault, (b) a sexual assault, or (c) stalkingas defined in RCW9A.46.110. 5It is the appellant's burden to provide a sufficient record to review the issues raised on appeal. Story v. Shelter Bay Co.. 52 Wn. App. 334, 345, 760 P.2d 368 (1988).No. 70617-9-1/10 protection orderfollowing an evidentiary hearing in2012. We conclude Cavener has 

### notdemonstrated a conclusive or strong defense to the claims underlying the challenged orders. Accordingly, the otherfactors for evaluating a motion to vacate a default order must be scrutinized. 

### The second factor, i.e., the reason for Cavener's default, supports the superior court's decision. Cavenerhad notice and ample opportunity to file a response to the petition. The court concluded, "There was no mistake, inadvertence, surprise or excusable neglect on the father's part and none has been asserted." The record supports this conclusion. While Cavenerpoints to the superior court's decision extending the deadline for adequate cause to August 2012, that decision did not change the June 8, 2012 deadline for his response to the petition or the June 14, 2012 hearing

on the pending motion for default. At least one ofthe secondary factors, whether Cavener acted with due diligence, 

### also favors denial ofthe motion to vacate. Due diligence in this setting contemplates the promptfiling of a motion to vacate. Akhavuz. 178 Wn. App. at 539. We have held thatthree- or four-month delays are too long. In re Estate of Stevens, 94 Wn. App. 20, 35, 971 P.2d 58 (1999) (three months); Luckett v. Boeing Co.. 98 Wn. App. 307, 313, 989 P.2d 1144 (1999) (four months), review denied. 140Wn.2d 1026, 10 P.3d 406 (2000). Cavener moved to vacate nearly eleven months afterthe orderofdefault. The motion to vacate was notfiled with due diligence.

10No. 70617-9-1/11
Insum, the superiorcourt did not abuse its discretion indenying Cavener's motion to vacate.6 Affirmed. 

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WE CONCUR:


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6We deny Jolles' request forfees on appeal. 11