Marriage of Markowski, In re, No. 8176-2-III

CourtCourt of Appeals of Washington
Writing for the CourtTHOMPSON
Citation50 Wn.App. 633,749 P.2d 754
PartiesIn re the MARRIAGE OF Connie Susan MARKOWSKI, Respondent, and Michael Gerard Markowski, Appellant.
Docket NumberNo. 8176-2-III
Decision Date18 February 1988

Page 633

50 Wn.App. 633
749 P.2d 754
In re the MARRIAGE OF Connie Susan MARKOWSKI, Respondent,
and
Michael Gerard Markowski, Appellant.
No. 8176-2-III.
Court of Appeals of Washington,
Division 3, Panel Two.
Feb. 18, 1988.
Reconsideration Denied April 12, 1988.

W. James Kennedy, Thorner, Kennedy, Gano, Yakima, for appellant.

Robert B. Royal, Yakima, for respondent.

THOMPSON, Acting Chief Judge.

The trial court denied Mr. Markowski's motion to vacate a decree of dissolution, containing custody and child support determinations, wherein he contended the decree was void for lack of jurisdiction. He appeals. We reverse.

[749 P.2d 755]

Page 634

The Markowskis were married in Oregon December 29, 1979. They had two children while residing in Oregon. On May 25, 1984, the Markowskis separated. Connie Markowski moved to Yakima with the children; Mr. Markowski remained in Oregon. Neither party previously had resided in Washington.

On June 22, 1984, Mrs. Markowski filed a petition for legal separation in Yakima County Superior Court. On June 24, Mr. Markowski arrived in Yakima to visit the children. While he was at the Yakima airport, Mrs. Markowski served Mr. Markowski a summons and petition for legal separation and a motion to appear and show cause. Mr. Markowski returned to Oregon, where he currently resides.

In the petition for legal separation, Mrs. Markowski sought permanent custody of the children, a property division, child support, and maintenance. Mr. Markowski failed to appear at the show cause hearing, and a temporary order concerning support, custody, visitation, and an award of attorney fees was entered July 6, 1984.

Thereafter, according to Mrs. Markowski, Mr. Markowski paid his child support and exercised his visitation rights. On October 10, 1984, Mrs. Markowski filed a new petition seeking dissolution. She also filed a certificate of mailing, indicating a copy of the petition was mailed to Mr. Markowski at his Oregon address. No summons was filed or mailed.

Mr. Markowski did not appear, and on November 14, 1984, an order of default was entered along with a decree of dissolution. Copies were mailed to him. Mrs. Markowski alleges he continued to pay the ordered child support and continued to insist upon his visitation rights as outlined in the decree.

Exactly 1 year later, on November 14, 1985, Mr. Markowski filed a motion to vacate the decree of dissolution pursuant to CR 60(b). The court denied the motion and a subsequent motion to reconsider. Mr. Markowski appeals.

Page 635

First, Mrs. Markowski contends Mr. Markowski may only appeal the trial court's discretionary act of denying his motion to vacate, and may not properly appeal the decree of dissolution itself. Bjurstrom v. Campbell, 27 Wash.App. 449, 618 P.2d 533 (1980). Also, she argues his motion to vacate was properly denied because it was not "made within a reasonable time" as required by CR 60(b), and was then barred by the 1-year requirement of CR 60(b).

Motions to vacate under CR 60(b)(5) 1 may be brought at any time after entry of judgment. In re Marriage of Maxfield, 47 Wash.App. 699, 702, 737 P.2d 671 (1987); In re Marriage of Hardt, 39 Wash.App. 493, 496, 693 P.2d 1386 (1985). Review of a denial of a CR 60(b) motion is generally limited to the propriety of the denial, and is not a review of the original judgment. Bjurstrom v. Campbell, supra. However, if questions are raised concerning lack of trial court jurisdiction, these issues are resolved on appeal as justice may require. State v. Santos, 104 Wash.2d 142, 702 P.2d 1179 (1985). Finally, when a judgment is void, the trial court has a nondiscretionary duty to grant relief. Kennedy v. Sundown Speed Marine, Inc., 97 Wash.2d 544, 549, 647 P.2d 30 (Utter, J., dissenting), cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982); In re Maxfield, 47 Wash.App. at 703, 737 P.2d 671; Brickum Inv. Co. v. Vernham Corp., 46 Wash.App. 517, 520, 731 P.2d 533 (1987). Because Mr. Markowski based his motion to vacate on CR 60(b)(5), contending the judgment was void, Mrs. Markowski's argument his motion was untimely must be rejected.

Mr. Markowski contends the decree was void because the trial court lacked personal jurisdiction over him. Proper service of the summons and complaint is essential to invoke

Page 636

personal jurisdiction over a party, and a default judgment...

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88 practice notes
  • Tupper v. Tupper, No. 53340-5-II
    • United States
    • Court of Appeals of Washington
    • 29 de dezembro de 2020
    ...though we conclude that the order was void, we resolve the equitable issues. See In re Marriage of Markowski , 50 Wash. App. 633, 638, 749 P.2d 754 (1988) (a party may still be estopped from challenging a decree that is void if the party who previously procured or consented to such a decree......
  • Scanlan v. Townsend, No. 89853–7.
    • United States
    • United States State Supreme Court of Washington
    • 6 de novembro de 2014
    ...River & Coulee City R.R., 149 Wash.App. 366, 370–71, 203 P.3d 1069 (2009) (quoting In re Marriage of Markowski, 50 Wash.App. 633, 635–36, 749 P.2d 754 (1988) ). Proper service of process must comply with both constitutional and statutory requirements, Farmer v. Davis, 161 Wash.App. 420, 432......
  • Oytan v. David–Oytan, No. 67254–1–I.
    • United States
    • Court of Appeals of Washington
    • 5 de novembro de 2012
    ...11. Likewise, In re Marriage of Tsarbopoulos, 125 Wash.App. 273, 104 P.3d 692 (2004); and In re Marriage of Markowski, 50 Wash.App. 633, 749 P.2d 754 (1988), are distinguishable. In Tsarbopoulos, after separation, the wife moved from Greece to Washington with the children and convened the d......
  • In re Parental Rights to E. R. D., 33762-6-III
    • United States
    • Court of Appeals of Washington
    • 19 de janeiro de 2017
    ...judgment. Allstate Ins. Co. v. Khani, 75 Wn.App. at 323 (1994); Leen v. Demopolis, 62 Wn.App. at 478 (1991); In re Marriage of Markowski, 50 Wn.App. 633, 635, 749 P.2d 754 (1988). During the October 23, 2014, hearing, Cathy Busha heard the trial court schedule a termination trial for Novemb......
  • Request a trial to view additional results
88 cases
  • Tupper v. Tupper, No. 53340-5-II
    • United States
    • Court of Appeals of Washington
    • 29 de dezembro de 2020
    ...though we conclude that the order was void, we resolve the equitable issues. See In re Marriage of Markowski , 50 Wash. App. 633, 638, 749 P.2d 754 (1988) (a party may still be estopped from challenging a decree that is void if the party who previously procured or consented to such a decree......
  • Scanlan v. Townsend, No. 89853–7.
    • United States
    • United States State Supreme Court of Washington
    • 6 de novembro de 2014
    ...River & Coulee City R.R., 149 Wash.App. 366, 370–71, 203 P.3d 1069 (2009) (quoting In re Marriage of Markowski, 50 Wash.App. 633, 635–36, 749 P.2d 754 (1988) ). Proper service of process must comply with both constitutional and statutory requirements, Farmer v. Davis, 161 Wash.App. 420, 432......
  • Oytan v. David–Oytan, No. 67254–1–I.
    • United States
    • Court of Appeals of Washington
    • 5 de novembro de 2012
    ...11. Likewise, In re Marriage of Tsarbopoulos, 125 Wash.App. 273, 104 P.3d 692 (2004); and In re Marriage of Markowski, 50 Wash.App. 633, 749 P.2d 754 (1988), are distinguishable. In Tsarbopoulos, after separation, the wife moved from Greece to Washington with the children and convened the d......
  • In re Parental Rights to E. R. D., 33762-6-III
    • United States
    • Court of Appeals of Washington
    • 19 de janeiro de 2017
    ...judgment. Allstate Ins. Co. v. Khani, 75 Wn.App. at 323 (1994); Leen v. Demopolis, 62 Wn.App. at 478 (1991); In re Marriage of Markowski, 50 Wn.App. 633, 635, 749 P.2d 754 (1988). During the October 23, 2014, hearing, Cathy Busha heard the trial court schedule a termination trial for Novemb......
  • Request a trial to view additional results

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