Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of            )       NO. 65937-5-I
                                            )
KRISTOPHER SCOTT MYERS,                     )       DIVISION ONE
                                            )
                      Petitioner,           )
                                            )
       and                                  )       UNPUBLISHED OPINION
                                            )
MELANIE ELAINE MYERS,                       )
                                            )
                      Respondent.           )       FILED:  March 12, 2012
                                            )

       Leach, A.C.J.  --  Kristopher Myers appeals a trial court order vacating an 

order of default, findings of fact and conclusions of law, and a decree of 

dissolution (collectively, "default orders") dissolving his marriage to Melanie 

Myers.1  Kristopher asserts four reasons why the trial court abused its discretion 

by granting this relief:  (1) Melanie failed to present substantial evidence of a 

prima facie defense to Kristopher's claims, (2) Melanie failed to demonstrate 

excusable neglect, (3) Melanie failed to demonstrate due diligence, and (4) 

Kristopher demonstrated that vacating the decree would cause him substantial 

hardship.   Because sufficient evidence supports the trial court's resolution of 

these contentions and the trial court appropriately exercised its discretion, we 

affirm. 

       1 We refer to the parties by their first names to avoid confusion.  No 
disrespect is intended. 

NO. 65937-5-I / 2

                                        FACTS

       Kristopher and Melanie Myers married in May 2007.  Both parties have 

children from prior relationships, but they have no children together.  They 

separated in October 2008, after Melanie was arrested for domestic violence 

(DV)  assault against  Kristopher.  She spent time in jail and was ultimately 

convicted.  After the DV incident, Kristopher obtained a restraining order against 

Melanie, and her first husband gained full custody of their two children by a 

default judgment.  Over the next year, Melanie was twice hospitalized for major 

depression and attempted suicide.  In addition, her father died during that year.

       Melanie's father, Donald Lee, left a substantial estate with  a value in 

excess of $500,000.  At its core, this case concerns Kristopher's claims to the 

assets of Lee's estate.  Lee's will named Melanie the estate's sole beneficiary,

and  an  Oregon probate court appointed her as personal representative.  

Kristopher filed for dissolution in October 2009, soon  after Melanie's second 

hospitalization.  Melanie responded to the petition by filing a brief declaration on 

November 24 that stated, "I will be responding to the Petition for Dissolution of 

Marriage as soon as a [sic] can hire a lawyer, which should be in the next few 

weeks."     However, Melanie did not respond to Kristopher's petition,               and 

Kristopher filed a motion for default on February 11, 2010.  The court entered 

the default orders on March 9.     The decree confirmed Kristopher's ownership of 

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NO. 65937-5-I / 3

the $206,000.00 Melanie  previously paid to him and awarded Kristopher a 

judgment against Melanie for an additional $226,562.67, purporting  to represent 

money still owed by Melanie to Kristopher under the third August 1 letter

described below, together with additional amounts this sum would have earned if 

invested.  Upon discovering this, Melanie filed a motion to vacate on June 8. 

The court heard the motion on July 26 and entered an order vacating the 

challenged orders on August 2.

       Melanie claims she transferred her father's IRAs to Kristopher because he 

told her the   transfer  would avoid adverse  tax consequences            and because 

Kristopher promised to help pay her medical and legal expenses.  Despite their

separation, Melanie claims that Kristopher continued to assure her they would 

reconcile.  To support her motion, Melanie produced an "Agreement" between 

Melanie and Kristopher, dated July 22, 2009, that states, in part, "It is agreed 

between the two parties involved to . . . [c]ash out inherited IRA's [sic] and used 

[sic] the sum to pay bills, hire a lawyer to gain custody of [Melanie's two children]

back, and at some point purchase a home together."  She also produced three 

letters she signed on August 1.  The first states, "I, Melanie E. Myers, wife of Kris

Myers gift the sum of $73,000.00 to Kris free and clear out of love and 

adoration."  The second states, "I, Melanie E. Myers, wife of Kris Myers gift the 

sum of $133,000.00 to Kris free and clear out of love and adoration."  The third

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NO. 65937-5-I / 4

states,  "I, Melanie E. Myers, wife of Kris Myers gift the grand total of 

$207,000.00 to Kris free and clear out of love and adoration."                  Melanie 

transferred approximately $206,000.00         from her father's  IRA       accounts to 

Kristopher.  She states that she intended the third letter to be a summary of the 

first two and that the $1,000.00 difference is merely an addition error.

       Kristopher's version of the facts differs significantly.  In his response to 

Melanie's motion to vacate, he contends that either before or shortly after Lee's

death, Melanie showed him a copy of the will that named both Melanie and 

Kristopher as co-beneficiaries of the estate, and according to Kristopher, the 

estate was valued at over $4,000,000.  He claims Melanie told him                    she 

destroyed that will and probated an older version and that  Melanie agreed to 

give him the sums listed in the three August 1 letters in exchange for his 

agreement not to contest her father's will.      He denies ever telling Melanie that 

they might reconcile.   Kristopher asserts that the July 22 "Agreement" is a 

forgery. He submitted the statement of his handwriting expert which stated that 

Kristopher's signature on that document was "probably not genuine." Melanie, in 

turn, denies the existence of any will naming Kristopher               as her father's 

beneficiary.  

                              STANDARD OF REVIEW

       We review a trial court's decision vacating a default judgment for an 

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NO. 65937-5-I / 5

abuse of discretion.2  "An abuse of discretion exists only when no reasonable 

person would take the position adopted by the trial court."3      "Abuse of discretion 

is less likely to be found if the default judgment is set aside."4        "Our primary 

concern in reviewing a trial court's decision on a motion to vacate is whether that 

decision is just and equitable."5  

                                      ANALYSIS

       Washington courts generally disfavor default judgments.           Instead, "[w]e 

prefer to give parties their day in court and have controversies determined on 

their merits."6  "But we 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."7 CR 60(b) states, in relevant part,  

       On motion and upon such terms as are just, the court may relieve a 
       party or his legal representative from a final judgment, order, or 
       proceeding for the following reasons:  
             (1) Mistakes, inadvertence, surprise, excusable neglect or 
       irregularity in obtaining a judgment or order;  
          . . . . 
          (9) Unavoidable casualty or misfortune preventing the party from 
       prosecuting or defending;
          . . . . 

       2 Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007).
       3 Little, 160 Wn.2d at 710 (citing Cox v. Spangler, 141 Wn.2d 431, 439, 5 
P.3d 1265 (2000)).
       4 Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 
(1979).
       5 TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal Supplies, Inc.,
140 Wn. App. 191, 200, 165 P.3d 1271 (2007).
       6 Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007).
       7 Little, 160 Wn.2d at 703.
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NO. 65937-5-I / 6

          (11) Any other reason justifying relief from the operation of the 
       judgment.

       In White v. Holm,8 our Supreme Court set out four factors the moving 

party must demonstrate in order to have a default judgment vacated:

       (1) That there is substantial evidence extant to support, at least 
       prima facie, a defense to the claim asserted by the opposing party; 
       (2) that the moving party's failure to timely appear in the action, 
       and answer the opponent's claim, was occasioned by mistake, 
       inadvertence, surprise or excusable neglect; (3) that the moving 
       party acted with due diligence after notice of entry of the default 
       judgment; and (4) that no substantial hardship will result to the 
       opposing party.

The first two factors are the principal considerations, while the third and fourth 

factors are secondary.9     These four elements vary in dispositive significance 

according to the facts of each case.  A strong defense to the claim or a strong 

reason for the delay may be almost dispositive, without consideration of the 

secondary factors.10

       Here, the trial judge found (1) that there was "significant, substantial and 

substantial [sic] dispute of the factual issues that cannot be resolved short of an 

evidentiary hearing or trial on the merits of this matter"; (2) that there was 

sufficient evidence of Melanie's emotional and mental distress to justify her 

failure to timely appear and answer; (3) that Melanie acted with due diligence in 

appealing the default; and (4) that there was no evidence to indicate Kristopher

       8 73 Wn.2d 348, 352, 438 P.2d 581 (1968).
       9 White, 73 Wn.2d at 352.
       10 White, 73 Wn.2d at 352.
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NO. 65937-5-I / 7

would suffer a substantial hardship if it vacated the default decree.  Kristopher 

challenges each of these findings.  Sufficient evidence supports the trial court's 

findings, and it did not abuse its discretion.  

Prima Facie Defense

       A party moving to vacate a default judgment must demonstrate a prima 

facie defense in order to avoid a useless trial.11         To determine whether the 

moving party has made this showing, the trial court must review the evidence, 

drawing  all reasonable inferences in the light most favorable to the moving 

party.12 The moving party has presented a prima facie defense "if it produces 

evidence that, if later believed by the trier of fact, would constitute a defense to 

the claims presented."13     In making its determination, the trial court does not 

weigh the evidence.14  

       Kristopher asserts that Melanie makes allegations against him but that 

she  presents no evidence that would justify changing his proposed property 

division.  However, Melanie presented a copy of her father's will that names her 

as the sole beneficiary of his estate.  In addition, she submitted a signed, written 

agreement between her and Kristopher that supports her claim that the parties 

       11 TMT Bear Creek, 140 Wn. App. at 203 (citing Griggs, 92 Wn.2d at 
583).
       12 Rosander v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 404, 196 
P.3d 711 (2008).
       13 Rosander, 147 Wn. App. at 404.
       14 Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835-36, 14 
P.3d 837 (2000).
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NO. 65937-5-I / 8

agreed to use those funds for her medical and legal expenses, as well as the 

three signed letters describing gifts of money to Kristopher.  While Kristopher

disputes the validity of the will and the agreement and claims that he is still 

entitled to the $207,000 described in the third letter, viewing the evidence and 

inferences in the light most favorable to the moving party, the court correctly 

determined that Melanie showed a prima facie defense to Kristopher's claim and 

that the decree's division of assets and liabilities was not fair and equitable.

Excusable Neglect

       When the moving party does not have a virtually conclusive defense, then 

the reason for that party's delay is also a primary factor to be weighed by the 

trial court. The moving party must show that her failure to timely appear and 

respond was due to mistake, inadvertence, surprise, or excusable neglect.15  

Whether a party's failure to appear constitutes excusable neglect depends on 

the facts of each case.16  Melanie alleges that while suffering from the effects of 

mental illness, she relied on Kristopher's assurances that they were going to 

reconcile and that she did not need to worry about responding.  While this 

statement alone may      not justify her delay, Melanie also submitted          medical 

records relating to her recurrent mental illness and Social Security documents 

showing that she was adjudged fully disabled at about the same time as her 

       15 CR 60(b).
       16 City of Goldendale v. Graves, 88 Wn.2d 417, 423, 562 P.2d 1272 
(1977).
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NO. 65937-5-I / 9

second suicide attempt and first hospitalization.  Her documented history of 

depression and attempted suicides, exacerbated by then                pending criminal 

charges, the death of her father, and the loss of custody, provide strong support 

for her claim of excusable neglect.  Viewing  this evidence in the light most 

favorable to Melanie, it more than sufficiently supports the trial court's finding 

that she had good cause for her delay.  

       Kristopher also argues that the trial court erred by not identifying the

subsection of CR 60(b) it applied to find cause to vacate.  We disagree.  While 

the court's order does not recite a specific subsection, the court addressed

Melanie's evidence in terms of excusable neglect.  

       Because of the strength of Melanie's defense and the sufficient reasons

shown for her delay, the secondary White factors that Kristopher argues have 

not been met require little analysis.  Melanie moved to vacate the default within

three months of its entry, well within the "reasonable time" required by CR 60.17  

Further, Kristopher fails to demonstrate how the vacation causes him substantial 

hardship.  Given the preference for resolving legitimate factual disputes on the 

merits, the requirement that a trial court make a just and equitable distribution of 

property in a dissolution, the grossly disparate distribution of assets after a short-

term marriage, and Melanie's documented mental health issues, the trial court 

did not abuse its discretion.  

       17 Luckett v. Boeing Co., 98 Wn. App. 307, 310-12, 989 P.2d 1144 (1999). 
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NO. 65937-5-I / 10

Motion for Reconsideration

       Kristopher also appeals the trial court's order denying his motion for 

reconsideration of the default orders.  We will disturb a trial court's decision to 

deny a motion for reconsideration only for an            abuse of discretion or an 

erroneous interpretation of the law.18       Kristopher first argues that the court 

should have granted his motion due to irregularities in the proceedings.19            He 

claims that the trial court erroneously admitted Melanie's medical records 

"because Melanie did not timely produce [the medical evidence], it was 

incomplete, and the delayed filing unfairly eliminated his opportunity to respond 

to it." The trial court correctly determined that the medical documentation was 

appropriate in Melanie's strict reply because Kristopher disputed her mental 

illness in his response to the motion to vacate.  Kristopher cites no authority for 

his assertion that his inability to file a surreply to Melanie's strict reply somehow 

violated his due process rights.  "Where no authorities are cited in support of a 

proposition, the court is not required to search out authorities, but may assume 

that counsel, after diligent search, has found none."20

       Next, he alleges newly discovered evidence of a  lawsuit against him 

threatened by the Lee estate warranted reconsideration.  Again, we disagree.  

       18 State v. Cho, 108 Wn. App. 315, 320, 30 P.3d 496 (2001).
       19 CR 59(a)(1).
       20 DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 
(1962).
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NO. 65937-5-I / 11

To justify reconsideration,  the  newly discovered evidence must (1) probably 

change the result of the hearing, (2) have been discovered since the hearing, (3) 

not have been discoverable before the hearing by diligence, (4) be material, and 

(5) not be merely cumulative or impeaching.21  Failure to satisfy any one of these 

five factors is a ground for denial of the motion.22  Kristopher does not show that 

knowledge  of the threat of this lawsuit would  likely change the trial court's 

decision.  The Lee estate threatened to sue Kristopher based upon a claim that 

he wrongfully utilized the default decree to withdraw funds from an estate 

account, leaving the estate insolvent and unable to pay creditors.           Kristopher 

fails to explain how the vacation of the decree changed his exposure to that 

claim.  Therefore, the court did not abuse its discretion in refusing to reconsider 

its order based on newly discovered evidence.  

       Finally, Kristopher claims that the court's decision was contrary to the 

evidence23 and that substantial justice has not been done.24   We find both 

arguments unpersuasive.  As discussed above, Melanie's declarations and 

supporting evidence sufficiently support the trial court's decision.  His argument 

about substantial justice can most generously be characterized as disingenuous.  

Our reading of the record suggests a less generous one. 

       21 Holaday v. Merceri, 49 Wn. App. 321, 329, 742 P.2d 127 (1987).
       22 State v. Fellers, 37 Wn. App. 613, 617, 683 P.2d 209 (1984).
       23 CR 59(a)(7).
       24 CR 59(a)(9).
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NO. 65937-5-I / 12

Request for Attorney Fees

       Both parties request attorney fees pursuant to RAP 18.1 and RCW 

26.09.140.  In an appeal in any proceeding under chapter 26.09 RCW, "the 

appellate court may, in its discretion, order a party to pay for the cost to the other 

party of maintaining the appeal and attorney's fees in addition to statutory 

costs."25  This award of attorney fees on appeal is not a matter of right but is 

determined by economic need and ability to pay.26  Here, the trial court's division 

of assets and liabilities     will  affect each   party's  need   and  ability to pay. 

Additionally, resolution of each      party's  claims of misconduct by the other 

requires credibility determinations best decided by the trial court.  Therefore, we 

deny both requests for attorney fees at this time, without prejudice to renewal of 

a request for fees on appeal at trial.

                                    CONCLUSION

       The record supports the trial court's findings and its exercise of its 

discretion.  We affirm and remand for further proceedings consistent with this 

opinion.

WE CONCUR:

       25 RCW 26.09.140.
       26 In re Marriage of Terry, 79 Wn. App. 866, 871, 905 P.2d 935 (1995).
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NO. 65937-5-I / 13

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