In the Matter of the Marriage of Drew C. Olsen, Appellant, and Megan M. Olsen, Respondent
Appeal from Spokane Superior Court. Docket No: 11-3-01277-6. Judge signing: Honorable Michael P Price. Judgment or order under review. Date filed: 10/31/2012.
Kenneth H. Kato, for appellant.
Terence R Whitten ; and Kelly E. Konkright (of Lukins & Annis PS ), for respondent.
Authored by Laurel H. Siddoway. Concurring: George B. Fearing, Stephen M. Brown.
[183 Wn.App. 548] ¶ 1 After Drew Olsen, his lawyer, or both failed to appear for trial in this marriage dissolution action a third time, the superior court proceeded to hear Megan Olsen's evidence, on the basis of which it issued a memorandum decision and later entered final orders. Mr. Olsen moved under CR 60(b)(1) for relief from an " order of default" that the trial court entered following the conclusion of Ms. Olsen's evidence and from the court's final orders. The court denied the motion, leading to this appeal.
¶ 2 Although the trial court and the parties referred to the single-party trial that took place and to the resulting [183 Wn.App. 549] final order as " default" proceedings, they were default proceedings only in the broadest sense of that word--for purposes of the civil rules and the analysis on appeal, there was a trial, and it was on the merits. Under well settled law, Mr. Olsen bears responsibility for the negligence
of his lawyer and is not entitled to relief from the trial outcome. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶ 3 After nine months of marriage, Megan and Drew Olsen separated and Ms. Olsen moved to Kansas with their only child. In October 2010, she filed an action for dissolution of the marriage in Kansas. A trial took place in Kansas at the conclusion of which the court granted Ms. Olsen a divorce and addressed child custody issues, but declined to address financial issues, concluding that it lacked personal jurisdiction over Mr. Olsen.
¶ 4 Mr. Olsen had initiated this dissolution proceeding in Spokane County in May 2011, and it became the forum through which the parties would resolve issues of child support, divide their property and debt, and apportion liability for attorney fees. Trial in Spokane was originally set for January 2012 but was continued by agreement of the parties. They then agreed to mediate and set a March date for mediation, but Mr. Olsen's former attorney, Kevin Mickey, failed to appear. The mediation proceeded with Mr. Olsen participating pro se, but was unsuccessful.
¶ 5 In anticipation of the new, April 16, 2012 trial date, Ms. Olsen filed a domestic trial management joint report and served it on Mr. Mickey. Her report projected a half day trial, and that only she and her ex-husband would be called as witnesses, and estimated one hour's testimony from each. No joint trial management report was submitted on Mr. Olsen's behalf.
¶ 6 On April 16, only Ms. Olsen's lawyer appeared for trial. (He had obtained agreement that Ms. Olsen could testify telephonically from Kansas.) The trial court chose [183 Wn.App. 550] not to proceed; instead, it continued the trial to May 14. In an " Order Regarding Trial" entered on April 18, the trial court recounted what had occurred on April 16 and ordered that an amended domestic case schedule order " shall be sent to the office of both the attorney for the Petitioner, and the attorney for the Respondent, as well as directly to the Petitioner." Clerk's Papers (CP) at 87. It further ordered that " [i]f neither the Petitioner, nor an attorney for the Petitioner appears for trial on May 14, 2012, a default will be entered." Id.
¶ 7 Lawyers for both parties appeared at the time set for trial on May 14, but Mr. Mickey reported to the court that Mr. Olsen was unavailable for trial that day. The court again rescheduled the trial, this time to commence at 9 a.m. on May 16.
¶ 8 On May 16, Ms. Olsen's lawyer arrived at court at the appointed hour, only to learn that Mr. Mickey had called the court that morning, claimed that he was outside the courtroom suffering from chest pains, and stated he was going to the hospital. The court advised Mr. Mickey by telephone message that trial would commence at 1:30 p.m. unless he provided ...