Opinion
No. 54687-2-I
Filed: August 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-08234-8. Judgment or order under review. Date filed: 07/30/2004. Judge signing: Hon. Joan B Allison.
Counsel for Appellant(s), Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
George Fair appeals the judgment and sentence arising from his conviction for violation of a stipulated no-contact order entered in his dissolution proceeding. His challenge is based on the claim that there was no personal jurisdiction over him in that proceeding. Specifically, he contends service of process in that proceeding was invalid and the no-contact order was therefore invalid. Because substitute personal service of process in the dissolution action was valid, the no-contact order is not invalid, and there is no other persuasive argument to overturn the judgment and sentence, we affirm. On July 2, 2003, Marcia Fair commenced dissolution proceedings against her husband, George Fair. They agreed that George could continue to live in the house with Marcia until the end of August. On July 21, a process server came to their home and left a copy of the summons and petition for dissolution of marriage, along with other documents, with Marcia for George. Thereafter, the process server filed with the King County Superior Court a declaration as proof of service of the documents on George.
Because the parties have the same last name, we will refer to them by first name.
On August 7, as part of the divorce proceedings, George, an attorney, signed a stipulated no-contact order prepared by Marcia's counsel restraining him from 'molesting or disturbing the peace of the other party.' The parties were further restrained in other respects not pertinent to this appeal.
The stipulated no-contact further provided that both parties were 'restrained from transferring, removing, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life and requiring each party to notify the other of any extraordinary expenditures made after the order is issued.' State's Exhibit 9.
On August 25, George and Marcia were involved in a physical altercation, the facts of which were disputed at the trial of this criminal prosecution. The State charged George with one count of domestic violence felony violation of a court order. During trial on the criminal charge, George moved to dismiss, arguing that the no-contact order was invalid because he was not validly served in the dissolution proceeding. The court denied the motion. Thereafter, a jury convicted him, as charged.
George appeals.
VALIDITY OF NO-CONTACT ORDER
George primarily argues that the no-contact order that the State claims he violated is not valid. Specifically, he contends the court had no personal jurisdiction over him on which to issue this order because service of process in that proceeding was invalid. We disagree.
George's sole challenge to the validity of the no-contact order in this criminal prosecution is that he contends that service of process in the dissolution proceeding was invalid. He does not argue, and there is nothing in the record to suggest, that he did not receive process. Moreover, there is no dispute that a process server left the relevant documents with Marcia at the parties' place of residence at the time. A challenge to the validity of a court order raises an issue of law that we decide de novo.
State v. Miller, 123 Wn. App. 92, 97-98, 96 P.3d 1001 (2004).
SUBSTITUTE SERVICE OF PROCESS
George bases his argument on the underlying premise that Marcia served process on him. That premise is false.
The purpose of the statutes prescribing the methods of service of process is to provide due process. Due process requires notice that is reasonably calculated, under all the circumstances, to apprise all interested parties to the pendency of an action and to afford them the opportunity to be heard and present any objections they may have.
Wichert v. Cardwell, 117 Wn.2d 148, 151, 812 P.2d 858 (1991).
Wichert, 117 Wn.2d at 151 (citing Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).
RCW 4.28.080(15) expressly provides that one means of personal service upon an individual, that of substitute personal service, may be effected 'by leaving a copy (1) at the defendant's usual abode (2) with some person of suitable age and discretion (3) then resident therein.' 'All three elements of substitute personal service must be satisfied' to give the trial court personal jurisdiction.
Gerean v. Martin-Joven, 108 Wn. App. 963, 969, 33 P.3d 427 (2001) (citing RCW 4.28.080(15); Vukich v. Anderson, 97 Wn. App. 684, 687, 985 P.2d 952 (1999); Lepeska v. Farley, 67 Wn. App. 548, 551, 833 P.2d 437 (1992)), review denied, 146 Wn.2d 1013 (2002).
Id.
Here, there is proof of service on file stating that the process server, K. VanDyke Jr., served the summons and petition for dissolution of marriage and other documents for divorce proceedings on George Fair at his then residence:
by then and there personally delivering 1 true and correct copy[ies] thereof, by then presenting to and leaving the same with MARCIA J. FAIR, WIFE, AS DIRECTED . . . a person of suitable age and discretion who stated the above address to be the residence and usual place of abode of themselves and the subject(s) and/or subjects legal representative listed above. Defendant's Exhibit 15.
An affidavit of service that is, on its face, regular in form and substance is presumptively correct. The person challenging the validity of service has the burden to show that service was improper by clear and convincing evidence. George has not challenged any of the three elements of substitute service. Specifically, he does not argue that his 'usual abode' was other than the place where the process server left the documents. Moreover, he admits that Marcia, who received the documents from the process server, also resided at the same residence. Significantly, he does not argue that Marcia was not a 'person of suitable age and discretion' for purposes of receipt of the documents the process server left at the residence.
Lee v. Western Processing Co., 35 Wn. App. 466, 469, 667 P.2d 638 (1983).
Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991).
George relies on the provisions of CR 4(c) to argue that service was invalid. That reliance is misplaced.
CR 4(c) provides that
Service of summons and process [may be made by] any person over 18 years of age who is competent to be a witness in the action, other than a party.
It is clear from the record that Marcia did not serve George; the process server served him by leaving the documents with Marcia in compliance with the terms of the statute. Because the process server, a person over 18 years of age and not a party, served George, service also complied with the requirements of the court rule. Service was complete and valid at the moment that the process server gave the documents to Marcia, and George fails to overcome this determination by clear and convincing evidence. Pursuant to the valid service of process, the trial court had personal jurisdiction over George. George does not contest the fact that he had actual knowledge of the restraining order, as he acknowledges having signed it. The restraining order was valid, and the trial court had the authority to enforce the restraining order by imposing criminal sanctions for violating it.
City of Auburn v. Solis-Marcial, 119 Wn. App. 398, 404, 79 P.3d 1174 (2003).
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds for review, George contends the trial court failed to arraign him on an amended information. But there is no evidence in the record that any amended information was filed. We will not consider an argument that is not adequately supported by authority. George also contends that the trial judge was biased as evidenced by their past history as attorneys and by the judge's hostile questioning, criticism, and rulings excluding defense evidence. But there is no evidence in the record regarding the trial judge's past history with George. The judge's questioning served to clarify arguments, and he was required to rule on challenges to the admissibility of evidence. George also contends the trial judge committed misconduct by talking with jurors after the verdict was read, in referring to George's right to appeal, in making rulings that violated his right to free exercise of religion by restricting testimony about his religious beliefs, and in prematurely terminating his closing argument. But after the verdict was read, the judge could not influence the jury; the judge's reference to George's right to appeal merely acknowledged that right and could not have been detrimental; the judge's rulings regarding evidence were based on relevance, and the judge's admonishment to George to address only the charges before the jury and not to argue with the court about the law was well taken.
RAP 10.3(a)(5); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
We affirm the judgment and sentence.