Glory Martin Jayagaran v. Sunita Jayagaran ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 80504-5-I
)
GLORY MARTIN JAYAGARAN, )
)
Appellant, )
) DIVISION ONE
and )
)
SUNITA JAYAGARAN, )
) UNPUBLISHED OPINION
Respondent. )
)
MANN, C.J. — Glory Jayagaran appeals the trial court’s order declaring a divorce
judgment and decree entered by a court in India invalid and unenforceable under
Washington law due to lack of personal service on his wife, Sunita. 1 Glory also
challenges the trial court’s denial of his CR 60 motion to vacate. 2 We affirm.
I.
In February 1997 Glory and Sunita moved to Washington from India. They
briefly returned to India to be wed, then returned to Washington to resume their now-
1 The Indian court uses the term “divorce” in its order, and this opinion will use the term “divorce”
in reference to that order.
2 This opinion refers to the parties by their first names to avoid confusion. We intend no
disrespect.
Citations and pin cites are based on the Westlaw online version of the cited material.
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married lives. The Jayagarans lived in Washington for 18 years, where they had 3
children. In March 2015 the family returned to India with Glory taking a new permanent
position with Microsoft in India.
The Jayagarans’ marriage was troubled. Between 2009 and 2015, Washington
courts granted four full protection orders against Glory due to domestic violence.
Ongoing abuse resulted in Sunita fleeing from India and returning to Washington with
her children in 2015.
Upon learning of Sunita’s return, Glory initiated divorce proceedings in India. On
August 29, 2015, Glory’s attorney in India drafted a marital complaint and threatened to
begin divorce procedures. The attorney sent this document to Sunita’s personal e-mail
and mailed it to her parents’ home in Mumbai. Sunita had not resided with her parents
since 1996. The letter was sent back with the label “return to sender.”
Glory then mailed a “Form 11” document 3 to Sunita’s parents’ home. This
document was returned with the label “return to sender.” Glory then attempted courier
service of the Form 11 document at the same address. Sunita’s mother told court staff
delivering the document that Sunita had returned to the United States over a year prior.
On October 19, 2016, Glory’s attorney in India prepared a memorandum
requesting the Indian court permit service by mail and e-mail. The record does not
include a response or order from the Indian court, but a new Form 11 was issued. Glory
mailed this new form to the residential address of Sunita’s friends, the Lees, as well as
a Microsoft campus building. Sunita maintained that she never lived at the Lees’
3 The “Form 11” document appears to be the Indian court’s equivalent of a summons.
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residence. She also maintained that she was a contractor for Microsoft and did not
have a work address there.
On February 8, 2017, Glory obtained a default divorce decree from the Indian
court. He e-mailed Sunita at her personal e-mail address, informing her of the decree.
Sunita maintained she did not receive Glory’s e-mails.
After learning that Glory had returned to the United States, on July 12, 2018,
Sunita filed for dissolution in the King County Superior Court. Glory answered and
claimed that the court did not have jurisdiction over him or Sunita, and that the Indian
court had already dissolved their marriage.
On September 7, 2018, Sunita filed a motion with the trial court requesting it find
the Indian divorce decree invalid because of due process violations for lack of service
and notice. Sunita also sought a declaration that Washington had jurisdiction over the
dissolution proceedings. Following a hearing, on October 31, 2018, the trial court
entered an order finding the Indian divorce decree invalid for lack of service and notice
to Sunita. The court also determined it had jurisdiction over the dissolution action filed
by Sunita.
Almost eight months later, on June 27, 2019, Glory filed a motion to vacate the
October 31 order under CR 60(b)(3) and (11). The trial court denied the motion to
vacate.
Glory appeals.
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II.
Glory argues first that the trial court abused its discretion in determining the
Indian divorce decree was invalid and unenforceable under Washington law due to lack
of personal service. We disagree.
This court reviews de novo if service of process was proper. Scanlon v.
Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014).
The “essence of due process” is the requirement that a person subject to a
lawsuit be given notice of the case and the opportunity to be heard. Matthews v.
Eldrige, 424 U.S. 319, 348 S. Ct. 893, 47 L. Ed. 2d 18 (1976). “Proper service of
process must comply with both constitutional and statutory requirements.” Scanlan, 181
Wn.2d at 847 (citing Farmer v. Davis, 161 Wn. App. 420, 432, 250 P.3d 138 (2011)).
Glory avers that he satisfied the requirements for service both under Indian law and
Washington law by mailing notice to Sunita’s parents’ home in Mumbai and then having
the clerk’s office deliver the notice to her home. In support of his argument, Glory
mistakenly relies on CR 5(b). 4 “Service and the filing of pleadings and other papers,
subsequent to the original complaint, are covered under the auspices of CR 5 . . . CR 4
controls service of the original summons and complaint.” Jones v. Stebbins, 122 Wn.2d
471, 476, 860 P.2d 1009 (1993) (emphasis added).
In addition to CR 4, service of process, including service of the original
summons, is governed by CR 4.1, and chapter 4.28 RCW. CR 4 provides the
4 Glory also cites Rules for Enforcement of Lawyer Conduct (ELC) 4.1 as authority for service by
mail. The ELC rules only govern the procedures by which a lawyer may be subjected to disciplinary
sanctions or action for violations of the Rules of Professional Conduct. ELC 1.1. They are irrelevant to
service of process requirements.
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requirements for commencing a civil action, providing notice of the action, and service
of the action. CR 4.1 provides the specific form for a domestic action. RCW 4.28
enumerates the means in which effective service of process can be made in
Washington in order to satisfy due process requirements. A summons may be served
by delivering a copy to the defendant or respondent personally, by leaving a copy of the
summons at the house of their usual abode with some person of suitable age, or by
leaving a copy at their usual mailing address and mailing. RCW 4.28.080 (16), (17).
The “usual mailing address” does not include the respondent’s place of employment.
RCW 4.28.080(17). The statute does not provide for service by e-mail. RCW
4.28.080(16).
Here, at no point was service delivered to an address where Sunita resided. Nor
did Glory comply with the requirements for service by publication set out in RCW
4.28.100. Glory’s mailing to Sunita’s parents’ address, his purported e-mail
correspondences to Sunita, his mail to a Microsoft office in which Sunita did not work,
and his mailing to the Lee residents met neither the requirements of due process nor
service of process under Washington law.
III.
Glory argues next that the trial court abused its discretion in denying his CR 60
motion to vacate. We again disagree.
“On appeal, a trial court’s disposition of a motion to vacate will not be disturbed
unless it clearly appears that it abused its discretion. Lindgren v. Lindgren, 58 Wn. App.
588, 595, 794 P.2d 526 (1990). A trial court abuses its discretion when its ruling is
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based on untenable grounds or for untenable reasons or when the discretionary act was
manifestly unreasonable. Lindgren, 58 Wn. App. at 595.
“CR 60 is a limited procedural tool that governs relief from final judgments.”
Fireside Bank v. Askins, 195 Wn.2d 365, 375, 460 P.3d 157 (2020). “Relief may be
sought on many bases, including mistakes, inadvertence, excusable neglect, newly
discovered evidence, and fraud.” Fireside, 195 Wn.2d at 375. “The rule balances the
principles of equity and finality.” Fireside, 195 Wn.2d at 375. “Fundamentally, a CR 60
proceeding is ‘equitable in its character, administered upon equitable principles, and
extended upon equitable terms.’” Fireside, 195 Wn.2d at 375 (quoting Roth v. Nash, 19
Wn.2d 731, 738, 144 P.2d 271 (1943)).
Nearly eight months after the trial court’s order declaring the Indian decree
invalid for lack of personal service, Glory moved to vacate the order under CR 60(b)(3)
and (b)(11). Glory’s motion included, for the first time, documents he claimed
demonstrated that he complied with service requirements under Indian law. Glory
asked the court to apply comity and follow Indian law, citing In re Estate of Toland, 180
Wn.2d 836, 329 P.3d 878 (2014).
After consideration, the trial court issued the following findings:
a. The Respondent does not meet his burden under a CR 60(b)(3) motion
as he cannot establish that the evidence filed in his motion (1) would
probably change the result if a new trial were granted, (2) was
discovered since trial, (3) could not have been discovered before the
trial by the exercise of due diligence, (4) is material, and (5) is not
merely cumulative or impeaching. CR 60(b)(3); Jones v. City of
Seattle, 179 Wn.2d 322, 360, 314 P.3d 380 (2013).
b. The Respondent does not include the required statements of due
diligence in seeking the new evidence included in his motion. CR
60(b)(3); Vance v. Offices of Thurston County Comm’rs, 117 Wn. App.
660, 71 P.3d 680 (2003).
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c. The Respondent does not demonstrate that the circumstances present
in this case rise to the level of extreme, unexpected, or extraordinary
circumstances as contemplated by CR 60(b)(11). State v. Ward, 125
Wn. App. 374, 379, 104 P.3d 751 (2005).
d. There are no legal grounds upon which to vacate the Order on
Petitioner’s Motion Regarding Jurisdiction and Foreign Divorce Decree,
and this motion must be denied.
e. CR 60 is an inappropriate remedy based on the materials presented
and lack of legal foundation for such a motion and the Respondent is
admonished for using this process to obtain relief.
Glory does not challenge the trial court’s findings. Nor does he assign error to
the trial court’s determination that his motion under CR 60(b)(3) and (b)(11) that his CR
60 motion lacked merit. This is fatal to his appeal.
CR 60(b)(3) states:
On motion and upon such terms as are just, the court may relieve a party
or the party's legal representative from a final judgment, order, or
proceeding for the following reasons:
(3) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under rule 59(b).
“To justify vacating a judgment on the ground of newly discovered evidence, the
moving party must establish that the evidence (1) would probably change the result if a
new trial were granted, (2) was discovered since trial, (3) could not have been
discovered before the trial by the exercise of due diligence, (4) is material, and (5) is not
merely cumulative or impeaching.” Jones, 179 Wn.2d at 360. The “[f]ailure to satisfy
any one of these five factors is a ground for denial of the motion.” Go2Net, Inc. v. C I
Host, Inc., 115 Wn. App. 73, 88, 60 P.3d 1245 (2003).
We agree with the trial court. Glory’s CR 60 motion failed to support application
of CR 60(b)(3). Glory did not argue below, and does not argue here, that the evidence
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he offered met the standard for “newly discovered” evidence consistent with CR
60(b)(3).
CR 60(b)(11) allows a trial court to vacate a judgment for “[a]ny other reason
justifying relief from the operation of the judgment.” But CR 60(b)(11) is “not a blanket
provision authorizing reconsideration for all conceivable reasons.” State v. Keller, 32
Wn. App. 135, 141, 647 P.2d 35 (1982). Instead, CR 60(b)(11) is confined to
“extraordinary circumstances” and “must relate to ‘irregularities which are extraneous to
the action of the court or go to the question of the regularity of the proceedings.’” Keller,
32 Wn. App. at 141 (quoting Marie's Blue Cheese Dressing, Inc. v. Andre's Better
Foods, Inc., 68 Wn.2d 756, 758, 415 P.2d 501 (1966)).
Again, we agree with the trial court that Glory’s motion under CR 60(b)(11)
lacked merit. Glory failed to demonstrate below, or here on appeal, extraordinary
circumstances, extraneous irregularities, or irregularities of the proceedings.
Even though dismissal of Glory’s CR 60 motion was appropriate under CR
60(b)(3) and (b)(11), the trial court continued and addressed Glory’s argument that it
should apply comity and accept service under Indian law. “The comity doctrine allows a
court, acting within its discretion, to give effect to the law and resulting orders of another
jurisdiction out of deference and respect, considering the interests of each jurisdiction.”
Toland, 180 Wn.2d at 846 (citing Haberman v. Wash. Pub. Power Supply Sys., 109
Wn.2d 107, 160, 744 P.2d 1032, 750 P.2d 254 (1987)). To be valid, the foreign court
“must have had jurisdiction and there must have been opportunity for a full and fair trial
abroad before a court of competent jurisdiction, conducting the trial upon regular
proceedings, after due citation or voluntary appearance of the defendant, and under a
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system of jurisprudence likely to secure an impartial administration of justice between
the citizens of its own country and those of other countries.” Toland, 180 Wn.2d at 847.
“A judgment is valid if the court had jurisdiction, there was notice, and the court was
competent.” Toland, 180 Wn.2d at 847.
Here, recognizing the lack of notice, including lack of publication, the trial court
exercised its discretion not to apply comity, explaining:
f. The Respondent’s argument that the legal concept of comity permits
the court in Washington to accept Respondent’s “new” evidence as
proof of service is contrary to the laws and policies of the United States
and Washington, and enforcing this form of service and the Indian
decree would seriously interfere with Washington’s policies and laws
regarding due process, including notice, service of process, and
opportunity to be heard.
....
j. If service is impossible, under [CR 4(d)(3)] in Washington publication of
notice is required. There is no proof of such notice in India. Under the
principles of comity, the foreign judgment is not valid here.
Based on the record before us, we cannot say that the trial court abused its
discretion either in denying Glory’s CR 60 motion or in refusing to apply comity.
IV.
Sunita requests attorney fees and costs on appeal under RCW 26.09.140 and
RAP 18.1. RCW 26.09.140 provides that a court “may” award costs and attorney fees
for a party’s appeal in a dissolution case “after considering the financial resources of
both parties.” “This section requires an inquiry into the moving party’s need and the
nonmoving party’s ability to pay.” In re Marriage of Mueller, 140 Wn. App. 498, 510,
167 P.3d 568 (2012). Sunita has not supported her request with either financial
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information or argument as to why she is entitled to fees and costs. We decline to
award Sunita her fees and costs on appeal.
Affirmed.
WE CONCUR:
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