IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
KRISTOPHER SCOTT MYERS,
MELANIE ELAINE MYERS,
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
We refer to the parties by their first names to avoid confusion. No
disrespect is intended.
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Kristopher and Melanie Myers married in May 2007. Both parties have
children from prior relationships, but they have no children together.
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
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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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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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.”
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
STANDARD OF REVIEW
We review a trial court’s decision vacating a default judgment for an
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
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;
Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007).
Little, 160 Wn.2d at 710 (citing Cox v. Spangler, 141 Wn.2d 431, 439, 5
P.3d 1265 (2000)).
Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289
TMT Bear Creek Shopping Ctr., Inc. v. PETCO Animal Supplies, Inc.,
140 Wn. App. 191, 200, 165 P.3d 1271 (2007).
Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007).
Little, 160 Wn.2d at 703.
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(11) Any other reason justifying relief from the operation of the
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
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
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
73 Wn.2d 348, 352, 438 P.2d 581 (1968).
White, 73 Wn.2d at 352.
White, 73 Wn.2d at 352.
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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
TMT Bear Creek, 140 Wn. App. at 203 (citing Griggs, 92 Wn.2d at
Rosander v. Nightrunners Transp., Ltd., 147 Wn. App. 392, 404, 196
P.3d 711 (2008).
Rosander, 147 Wn. App. at 404.
Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 835-36, 14
P.3d 837 (2000).
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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.
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.
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
City of Goldendale v. Graves, 88 Wn.2d 417, 423, 562 P.2d 1272
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 shortterm marriage, and Melanie’s documented mental health issues, the trial court
did not abuse its discretion.
Luckett v. Boeing Co., 98 Wn. App. 307, 310-12, 989 P.2d 1144 (1999).
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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.
State v. Cho, 108 Wn. App. 315, 320, 30 P.3d 496 (2001).
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193
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
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.
Holaday v. Merceri, 49 Wn. App. 321, 329, 742 P.2d 127 (1987).
State v. Fellers, 37 Wn. App. 613, 617, 683 P.2d 209 (1984).
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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.
The record supports the trial court’s findings and its exercise of its
discretion. We affirm and remand for further proceedings consistent with this
In re Marriage of Terry, 79 Wn. App. 866, 871, 905 P.2d 935 (1995).
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