State ex rel. Burleigh v. Johnson, 9038-1-I

• Decision Date: 03 May 1982
• Docket Number: No. 9038-1-I,9038-1-I
• Citation: 31 Wn.App. 704,644 P.2d 732
• Parties: STATE of Minnesota ex rel. Merrilee Anne BURLEIGH, Respondent, v. Bruce Arden JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 704

31 Wn.App. 704

644 P.2d 732

STATE of Minnesota ex rel. Merrilee Anne BURLEIGH, Respondent, v. Bruce Arden JOHNSON, Appellant.

No. 9038-1-I.

Court of Appeals of Washington, Division 1.

May 3, 1982.

Ralph W. Moldauer, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Jeff Blumhagen, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

Bruce A. Johnson appeals from a superior court order requiring him to pay $90 per month child support under the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA), RCW ch. 26.21. The issue presented is whether the statute permits the State to commence an action for support by means of an order to show cause rather than by a summons and petition.

On August 31, 1979, the King County Prosecuting Attorney's Office received from the County Court of St. Louis County, Minnesota, a petition from Merrilee Anne Burleigh requesting an order of child support, together with an order of the county court judge (1) providing that "the petition states facts sufficient to support a determination that the respondent owes a duty of support to the petitioner;" and (2) transferring the matter to King County for further proceedings. The petition alleged the defendant married Ms. Burleigh in 1976 and fathered a son born September 19, 1977. Upon their divorce in 1978, the defendant was ordered to pay $90 per month in child support. He has failed to do so; Ms. Burleigh's petition alleged an accrued arrearage of $1,530.00.

The King County Prosecuting Attorney (State) served the defendant on December 19, 1979, with an order to appear and show cause why a support order should be entered under URESA. The defendant's motion to dismiss was granted upon a superior court finding that the defendant was not furnished a copy of the URESA petition or advised that a failure to appear would subject him to arrest. An amended order to appear and show cause was filed May 21, 1980, setting a June 9, 1980 hearing. The defendant appeared and renewed his motion to dismiss, arguing that the State could not acquire jurisdiction by means of a show cause order instead of by summons and petition. The superior court denied the motion, and a commissioner of the superior court entered a support order requiring the defendant to pay $90 per month in child support.

The defendant contends that, since RCW 26.21 provides no special form of process, the petition and summons authorized by CR 4 is the required form of process. He asserts that the proceedings involved in a show cause hearing are not sufficient under the statute or civil rules, and deny him equal protection under the laws, since petitioners living within the state of Washington must proceed by summons and petition and not through show cause hearings.

URESA legislation has been enacted in similar form in all states of the Union. The purpose is to provide a uniform and convenient means of enforcing duties of support imposed or imposable by law. RCW 26.21.900. The remedies provided by URESA supplement the other existent remedies, and apply to both inter- and intra-state support obligations. RCW 26.21.210.

Two principal procedural remedies are available to the State under URESA: (1) registration of a foreign support order in a court of this state, RCW 26.21.220-.270; and/or (2) imposition of a duty of support and determination of the amount of support, RCW 26.21.110-.200. ¹ If the first remedy is pursued, the State proceeds in the manner prescribed for civil cases. RCW 26.21.260. If the latter remedy is pursued, however, the statute requires that the State "take all action necessary in accordance with the laws of this state to give the court jurisdiction of the respondent or his property and shall request the court to set a time and place for a hearing." RCW 26.21.110. The State may obtain jurisdiction by arrest if it has reason to believe that the respondent may flee the state. RCW 26.21.104.

In the present case, we must determine the form of process required by the statute when the State seeks the imposition of a duty of support upon a respondent.

Being remedial in nature, (URESA) is to be accorded a liberal construction, bearing in mind its humanitarian purpose. Every effort should be made by the courts to render its operable and effective.

Yetter v. Commeau, 84 Wash.2d 155, 158, 524 P.2d 901 (1974) (in which a show cause proceeding was used by the state).

RCW 2.28.150 provides:

When jurisdiction is, by the Constitution of this state, or by statute, conferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws.

The hearing required by RCW 26.21.110 must satisfy due process. In Oregon, where show cause proceedings are authorized by statute, ² a fair hearing is required.

The right to produce material evidence, confront adverse evidence and have counsel present legitimate argument relating the facts and the law, is basic to a fair hearing for a litigant. He may choose, of course, not to avail himself of the right but the opportunity must be extended.

State ex rel. Fulton v. Fulton, 31 Or.App. 669, 672, 571 P.2d 179 (1977). In Rogoski v. Hammond, 9 Wash.App. 500, 513 P.2d 285 (1973), the court approved the use of show cause proceedings in prejudgment attachment cases so long as due process requirements were satisfied. The opinion states at 506, 513 P.2d 285:

The minimum requirements are these: (1) timely and adequate notice of hearing on the probable validity of the creditor's claim which states the basis for the claim and allows the debtor adequate time to prepare for the hearing; (2) an independent and impartial decision maker; (3) the right to appear personally at the hearing, with or without retained counsel; (4) the right at the hearing to confront and cross-examine any adverse witness and to present evidence and oral argument in support of his claim or defense; (5) the right to a decision based on applicable legal...