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In re Marriage of Condero4/4/2005
Nearly four years after the entry of a default judgment and decree of invalidity of marriage, the former husband moved to vacate the judgment. The trial court found that the former husband appeared informally and thus had been entitled to notice of the hearing on the motion for default. The court also concluded that service of the notice had not been sufficient. Accordingly, the court vacated the decree of invalidity of marriage and reinstated the action. Because the evidence in the record is not sufficient to support the finding that the former husband appeared informally, he was not entitled to notice of the hearing, and we do not need to address the remaining issues raised in this appeal. We reverse and remand for reinstatement of the order of default and the decree of invalidity of marriage.
FACTS
Pilar Cordero and Oscar Panganiban were childhood friends in the Philippines. Years after Cordero and her family immigrated to the United States, Cordero returned to the Philippines for a visit and became re-acquainted with Panganiban. The two maintained a long-distance relationship for some two years, until September 1999, when Panganiban entered the United States on a fianc visa that Cordero had obtained for him.
Panganiban lived with Cordero's brother, Isagani Cordero, until Panganiban and Cordero were married on September 10, 1999. The couple separated on September 29, 1999, 19 days later. According to Cordero, the marriage was never consummated, because Panganiban at first objected based on religious grounds -- because she had not yet been baptized as a Jehovah's Witness as he was -- and then admitted that he was impotent.
On October 7, 1999, Cordero filed a summons and petition for a declaration concerning the validity of the marriage, alleging fraud involving the essentials of marriage and that the marriage had not been ratified, and requesting a restraining order. The summons directed Panganiban to file the original of his response to the petition at the King County Courthouse, and to serve a copy on Cordero's attorney.
On November 2, 1999, Cordero filed a motion for entry of a decree of invalidity of marriage and a restraining order, along with her supporting declaration. Cordero filed proof of service in the form of a messenger declaration stating that the messenger personally delivered copies of the summons, petition, motion, supporting declaration, proposed findings and conclusions, proposed declaration concerning validity, and order setting case schedule to Panganiban at Isagani Cordero's address. On November 2, 1999, Cordero's attorney filed a notice scheduling a hearing for December 17, 1999, on the motion for entry of a decree declaring the marriage to be invalid, and for entry of a restraining order. A legal messenger filed a declaration stating that he delivered notice of the hearing by leaving a copy for Panganiban with Isagani Cordero on December 3, 1999.
On December 17, 1999, Cordero's counsel appeared but Panganiban did not appear. Following the hearing, the court found that "there was a fraud or misrepresentation after which disclosure there was no ratification by consummation of the marriage," Clerk's Papers at 17, granted Cordero's motion for decree of invalidity, signed findings of fact and conclusions of law, signed an order restraining Panganiban from contacting Cordero, and signed an order of default including a finding that "proper service has been effectuated," based on the messenger declaration. Clerk's Papers at 23.
Nearly four years later, on August 7, 2003, Panganiban filed a motion to vacate the order of default and the declaration of invalidity under CR 60(b)(4) & (5), contendin
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