IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON ^

In the Matter of the 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UNPUBLISHED OPINION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 of default. 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 other factors 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 with Cavener the 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 for
No. 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 off L.C, threw a "heavy brass

candlestick" at her while 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 of the wall. Jolles alleged the most recent incident occurred in July 2010

when Jolles' father attempted to serve documents on Cavener in the 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 of temporary orders of

protection.

In November 2010, Debra Hunter of King County Superior Court Family Court

Services (FCS) conducted a domestic violence assessment. Hunter concluded that the

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 of domestic

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 Cavener to obtain domestic violence treatment.

Cavener filed a motion for revision. The court denied the motion.

1Cavener provided only 2 pages of Hunter's 14-page report for purposes of this appeal.

2
No. 70617-9-1/3

In November 2011, Jolles filed a petition to renew the domestic violence

protection order. In her declaration in support, Jolles alleged, among other things, that

Cavener had not received domestic violence treatment as required by the prior order of

protection.

Cavener testified 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 Cavener completed domestic

violence treatment. The order stated that Jolles could request modification of the

parenting plan ifCavener failed 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 of arrangements.

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 of process. The court continued the hearing.

On February 15, Jolles moved for default, arguing that Cavener had failed to file

a response to her petition. The court denied Jolles' motion.

On March 21, 2012, Jolles served Cavener again. The return of service indicates

that on March 21, Cavener received the summons, petition for modification, case

schedule, and proposed orders.

On April 12, Jolles sent a letter to Cavener requesting a response to her petition

and cooperation in filing a confirmation of issues.
No. 70617-9-1/4

On May 11, 2012, Jolles again filed a motion for an order of default for 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 set for May 31. Jolles

filed a declaration of mailing indicating that she mailed Cavener all pleadings and

proposed orders related to the motion for a default order and the adequate cause

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

postal service.

On May 24, 2012, Cavener filed a pro se motion to dismiss the action due to lack

of personal jurisdiction, improper service, and improper venue.

At the May 31 hearing on adequate cause, a court commissioner considered

Cavener's motion to dismiss. Jolles alleges, and Cavener does not dispute, that

Cavener told the commissioner he contested only service of the motion for adequate

cause, not service of process as to Jolles' petition. Consistent with Jolles' allegation,

the commissioner ruled that "service of process is required for original process only.

Therefore, service is not a legal issue. Respondent was served." The clerk's minutes

state that the court then continued the hearing to June 14 "to allow [Cavener] to

respond" to Jolles' petition. The order states that "responding party's documents shall

be delivered to the moving party not later than 12:00[ ]noon on June 8, 2012."

On June 1, 2012, Jolles appeared at a status conference hearing. Cavener did

not appear. The court continued the "adequate cause deadline" to August 13.

On June 14, 2012, the court commissioner entered an order of default. The

order states that Cavener received notice of the hearing and "was given the opportunity
No. 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 in the 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 of domestic

violence. The order granting modification states, in pertinent part:

A Domestic Violence Order for Protection [(DVPO)] was entered in

December, 2010 finding that the Father presented a risk of imminent harm

to the Mother and child. A Risk Assessment was conducted . . . finding

that the Father presented risk to the child and recommending domestic

violence batterer's treatment. Subsequent to the entry of the DVPO, the

Respondent/Father participated in an intake with domestic violence

treatment program Anger Treatment Control Treatment & Therapies

deemed the Father not amenable to treatment and refused to admit him

into their program. The Father is presently an untreated batterer who

presents a substantial risk of harm to the Mother and child. Additional

facts are set forth in the Mother's declaration . . . which are incorporated

as ifset forth 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 DV Dad's at

Wellspring Family Services.

On April 29, 2013, Cavener filed a motion to vacate the order of default under CR

60(b). Cavener argued that the 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 prior protection orders and the

restrictions in the final parenting plan. With respect to the restrictions, Cavener argued

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 of the child.

At the hearing on the motion to vacate, Cavener's attorney conceded Cavener

did not file a response to the petition but argued entering an order of default 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 that the court repeatedly

ordered Cavener to 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 file the

correct documents and then wonder why the case was dismissed.

The court denied the motion to vacate. The court acknowledged that the law

disfavors default judgments, that a motion to vacate a default is equitable in nature, and

that the issues in the present case involved rights that are constitutional in nature.

Nonetheless, as the court pointed out, a party moving to vacate a default judgment must

show substantial evidence supporting a prima facie defense to the claims asserted, the

reason for their failure to timely appear or respond, their diligence following notice of the

default, and the effect of vacating the judgment on the opposing party. The court

concluded Cavener failed 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 whether the superior court abused its discretion in

denying Cavener's motion to vacate the order of default under CR 60(b). Default

judgments are "generally disfavored in Washington based on an overriding policy which

prefers that parties resolve their disputes on the merits." Showalter v. Wild Oats, 124

Wn. App. 506, 510, 101 P.3d 867 (2004). But courts "also value an organized,

responsive, and responsible judicial system where litigants acknowledge the jurisdiction

of the court to decide their cases and comply with court rules." Little v. King, 160 Wn.2d

696, 703, 161 P.3d 345 (2007). A court "must balance the requirement that each party

follow procedural 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 order that the 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 only if it abused its discretion. Akhavuz v. Moody, 178 Wn. App. 526, 532,

315 P.3d 572 (2013).

In this case, Cavener moved to vacate the default order under CR 60(b).

Specifically, Cavener sought to vacate the order on the grounds of "[mjistake,

inadvertence, surprise, excusable neglect or irregularity," CR 60(b)(1), or "[a]ny other

reason justifying relieffrom the operation of the judgment," CR 60(b)(11). The parties

agree that when a motion to vacate is sought on these grounds, the moving party must

demonstrate (1) there is substantial evidence to support a prima facie defense; (2) the

failure to timely appear or respond was occasioned by mistake, inadvertence, surprise,
No. 70617-9-1/8

or excusable 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 four factors

when motion to vacate was brought pursuant to 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 pursuant to CR 60(b)(11)). Cavener contends the superior court

misapplied these factors. We disagree.

The first two factors are the "primary" factors. Little. 160 Wn.2d at 704. When

evaluating the first factor, we view the evidence in the light most favorable to the moving

party. Pfaff v. State Farm Mut. Auto. Ins. Co.. 103 Wn. App. 829, 835, 14 P.3d 837

(2000). If the moving party is able to demonstrate a strong or virtually conclusive

defense, courts will generally spend little time inquiring into the reasons for the default.

Akhavuz, 178 Wn. 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 party will be more carefully scrutinized. Akhavuz. 178

Wn. App. at 533.

The superior court concluded that Cavener did not demonstrate a prima facie

defense to the claims underlying the orders entered by default. In its oral ruling, the

court noted that the 2012 renewal of the protection order meant that Cavener had failed

to carry his burden ofshowing "why there isn't a substantial likelihood of continuing

behavior warranting a domesticviolence restraining order." The court'swritten decision
No. 70617-9-1/9

states, in pertinent part:

Respondent's counsel has presented a notebook of materials going back

several years to support the claim that itwas error for King County

Superior Court Commissioner Meg Sassaman to include the parties' child

in a Domestic Violence (DV) Protection Order entered in December of

2010. That order was not appealed or changed 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 Order was

renewed in January of 2012.

Nevertheless, Cavener contends there is "no question [he] could have mounted a

spirited and credible defense" against the petition for modification of the parenting plan,

and "could have certainly counted on a trial court's discretionary powers to determine

that the evidence did not warrant his being deprived of immediate unsupervised contact

and extensive time with his child even if [RCW 26.09]. 191 factors were present."3 We

disagree.

Restrictions in parenting plans under RCW 26.09.191 are mandatory ifthe court

finds "a history of acts of domestic violence as defined in RCW 26.50.010(1)." RCW

26.09.191 (2)(a)(iii).4 Here, the undisputed record shows that the 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 of the 14 pages

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

3 Emphasis in original.

4 RCW 26.50.010(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) stalking as defined in

RCW9A.46.110.

5 It 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 order following an evidentiary hearing in 2012. We conclude Cavener has

not demonstrated a conclusive or strong defense to the claims underlying the

challenged orders. Accordingly, the other factors 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. Cavener had 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 Cavener points 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 of the secondary factors, whether Cavener acted with due diligence,

also favors denial of the motion to vacate. Due diligence in this setting contemplates

the prompt filing of a motion to vacate. Akhavuz. 178 Wn. App. at 539. We have held

that three- 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 after the order of default. The

motion to vacate was not filed with due diligence.

10
No. 70617-9-1/11

In sum, the superior court did not abuse its discretion in denying Cavener's

motion to vacate.6

Affirmed.

SkvixWk t

WE CONCUR:

M ^^^^V^/-a^Cy

6We deny Jolles' request for fees on appeal.

11