Marriage of McLean, In re, 64045-9

• Decision Date: 05 June 1997
• Docket Number: No. 64045-9,64045-9
• Citation: 132 Wn.2d 301,937 P.2d 602
• Court: Washington Supreme Court
• Parties: In re the MARRIAGE OF Kenneth Eugene McLEAN, Sr., Petitioner, and Terri L. McLean (now Earp), Respondent.

Page 301

132 Wn.2d 301

937 P.2d 602

In re the MARRIAGE OF Kenneth Eugene McLEAN, Sr., Petitioner and Terri L. McLean (now Earp), Respondent.

No. 64045-9.

Supreme Court of Washington En Banc.

Argued Jan. 21, 1997.

Decided June 5, 1997.

Hickman & Webster, Ronald B. Webster, Colfax, for petitioner.

Lisa McCammond, Colfax, for respondent.

MADSEN, Justice.

At issue in this case is whether RCW 26.09.175(2) and due process are satisfied when pleadings in a proceeding to modify an award of child support under a dissolution decree entered by a Washington court are served upon the nonpetitioning parent by certified mail, return receipt requested, but the mailing is returned marked unclaimed. We hold such service satisfies the statute and due process, and therefore affirm the Court of Appeals.

FACTS

The marriage of Petitioner Kenneth Eugene McLean (hereafter the father) and Respondent Terri L. Earp (formerly McLean) (hereafter the mother) was dissolved in January 1984 by a Washington decree. Custody ¹ of their two children was awarded to the mother and the father was ordered to pay child support of $125 per month for each child. In March 1994, the mother filed a petition for modification of child support in Whitman County Superior Court. On March 8, 1994, her counsel sent the father copies of the summons, petition, and related documents by certified mail, return receipt requested, at his residence in Payette, Idaho. The documents were returned on March 25, 1994, marked "unclaimed," and included notations indicating that notice had been given of this mail on March 10, 1994, and March 15, 1994. On March 31, 1994, a return of service was filed with the court stating that the summons, petition, and related documents had been served by mail requiring a return receipt, that they were returned "unclaimed," and further explaining that a copy of the return of service had been sent by first class mail to the father on that date, March 31, 1994. The March 31 mailing was not returned.

The father did not respond or appear. In May 1994, the mother obtained an order of default and an order increasing the father's child support obligation to $438.89 per month for one child who remained with her. (The other child had gone to live with his father.)

In December 1994, the father moved to vacate the default judgment and order of child support, arguing that proper out-of-state service had not been made under RCW 4.28.185 (the long-arm statute) and that the court lacked personal jurisdiction over him. The trial court denied the motion, and the father appealed. The Court of Appeals affirmed, in an unpublished opinion, reasoning that the Washington court had continuing jurisdiction over the parties to modify the provisions of the 1984 decree relating to support. The Court of Appeals further held that the mother's service of the summons, petition, and related documents complied with the statutory service requirements of RCW 26.09.175(2), and rejected the father's argument that the statute must be construed as requiring the return receipt to show that actual delivery had been made.

We granted the father's petition for discretionary review.

DISCUSSION

The father argues that RCW 26.09.175(2) and due process require a return receipt evidencing actual delivery and notice that an action for modification of child support has been started. He does not claim, however, that he did not receive notification of the mail by the post office.

We note that the father's argument is different than the argument presented to the Court of Appeals. The father argued to that court that in personam jurisdiction over him had to be obtained pursuant to the long-arm statute, RCW 4.28.185. As the Court of Appeals held, once jurisdiction is acquired over the subject matter and the parties in a dissolution of marriage action, jurisdiction over the parties and jurisdiction to modify child placement decisions, awards of spousal maintenance, and child support generally continues. See, e.g., Teitzel v. Teitzel, 71 Wash.2d 715, 430 P.2d 594 (1967); Heuchan v. Heuchan, 38 Wash.2d 207, 228 P.2d 470, 22 A.L.R.2d 1410 (1951) (involving nonresident party); Pike v. Pike, 24 Wash.2d 735, 167 P.2d 401, 163 A.L.R. 1314 (1946); Harris v. Harris, 71 Wash. 307, 128 P. 673 (1912); cf. Lindgren v. Lindgren, 58 Wash.App. 588, 794 P.2d 526 (1990) (continuing jurisdiction in other than dissolution action), review denied, 116 Wash.2d 1009, 805 P.2d 813 (1991). ² In oral argument before this court the father's counsel agreed that the Washington court has continuing jurisdiction in this matter.

However, even where there is continuing jurisdiction over the subject matter and the parties, a judgment may be attacked if a party has not been provided with proper notice and an opportunity to be heard. E.g. Lindgren, 58 Wash.App. at 593, 794 P.2d 526 (judgment may not be modified or vacated without notice to the adversary party). Where a court has continuing jurisdiction in a dissolution action, the court may exercise the power to modify a child support award upon reasonable notice even though the person notified is a nonresident at the time of modification. E.H. Schopler, Annotation, Necessity of Personal Service Within State Upon Nonresident Spouse as Prerequisite of Court's Power to Modify its Decree as to Alimony or Child Support in Matrimonial Action, 62 A.L.R.2d 544, § 2[a], 546 (1958); see also 24 Am.Jur.2d Divorce and Separation § 1090 (1983).

RCW 26.09.175(2) sets forth the requirements of notice to the nonpetitioning party, providing that

[t]he petitioner shall serve upon the other party the summons, a copy of the petition, and the worksheets in the form prescribed by the administrator for the courts.... If the decree to be modified was entered in this state, service shall be by personal service or by any form of mail requiring a return receipt.

Under RCW 26.09.175(3), if the responding party is served out-of-state, he or she has 60 days in which to file an answer. The responding party's failure to file an answer within the required time "shall result in entry of a default judgment for the petitioner." RCW 26.09.175(3).

It is well-settled that notice by mail may satisfy due process requirements. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). The Court of Appeals observed in State v. Thomas, 25 Wash.App. 770, 773, 610 P.2d 937 (1980) that the suggestion in Mullane that notice may be mailed has led states to vary in legislative requirements from unspecified type of notice to regular mail, certified mail, mail requiring a return receipt requested, to the only type of mail assuring actual notice, a return receipt signed by the addressee. An example of the latter type appears in a former version of RCW 46.64.040, the nonresident motorist statute, which provided for service of process on the Secretary of State, but only if "notice of such service and a copy of the summons or process is forthwith sent by registered mail requiring personal delivery, by plaintiff to the defendant and the defendant's return receipt ... [is] appended" to the return of service. Another statute requiring actual receipt by the addressee is RCW 12.40.040, concerning notice of a claim in small claims court, which states that the notice of the claim can be served "by registered or certified mail if a return receipt with the signature of the party being served is filed with the court."

Unlike former RCW 46.64.040 and RCW 12.40.040, RCW 26.09.175(2) does not state that the return receipt must be signed by the addressee, nor otherwise expressly indicate that actual delivery is required. If the Legislature had intended to require evidence of actual delivery, it could have said so expressly, as former RCW 46.64.040 and RCW 12.40.040 demonstrate.

However, the father maintains that if notice by mail, without more, was intended, the Legislature would not have required a form of mail requiring a return receipt. He contends that the return receipt requirement shows the Legislature intended a return receipt as evidence of actual delivery. As the father urges, statutes should be construed so that all of the language used is given effect, and no part is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996). Contrary to the father's argument though, the language "any form of mail requiring a return receipt" does not dictate that actual delivery is required to give meaning to that phase.

First, the return receipt form of mail designated enables the court and the parties to track what happens to the mail after it is sent. This may be important where it is claimed the petitioner used an incorrect address, for example. Second, while there may not be evidence of actual receipt, there will be evidence that notice was sent as required by the statute. As the Court of Appeals suggested with respect to the mechanics' lien statute which similarly provides that service may be sent by certified mail, return receipt requested, such a method protects the sender against a claim that notice was never mailed. Baker v. Altmayer, 70 Wash.App. 188, 190, 851 P.2d 1257, review denied, 122 Wash.2d 1024, 866 P.2d 39 (1993). ³

The plain language of RCW 26.09.175(2) does not require actual receipt. The father maintains, however, that due process is violated unless the statute is construed to require actual delivery.

Where possible, statutes will be construed so as to avoid any unconstitutionality. City of Seattle v. Montana, 129 Wash.2d 583, 590, 919 P.2d 1218 (1996). The Fourteenth Amendment requires that deprivation of life, liberty, or property by adjudication must be preceded by notice and an opportunity to be heard appropriate to the nature of the case. Mullane, 339 U.S. at 313, 70 S.Ct. at 656-57. Due process requires "notice...