Case Update (25 Nov 2024): In re Marriage of Paddock; subsequent pleadings in an open court case are served by court rule, and not the Service Convention
The parties, who married in the United Kingdom, were residents of King County, Washington when they separated. The Husband petitioned for an order of legal separation in Washington State on October 12, 2022. The parties entered an agreement that addressed division of their assets, among other things, in December 2022. On May 3, 2023, the trial court entered an agreed order of legal separation, with findings of fact, conclusions of law, a parenting plan, and an order of child support. On October 23, 2023, the Husband’s lawyer filed a notice of intent to withdraw from the case, and he provided an email and physical address for his client in Wales for “receipt of ‘all future pleadings in the case.’” [The Husband/Client later said that he never resided at the address provided by his lawyer and that the Wife and her lawyer had his correct address].
On November 7, 2023, six months after the parties’ legal separation order, the Wife moved to convert the legal separation to an order of dissolution decree, and a hearing was scheduled on this motion for December 4, 2023. The Wife filed “proof of service, indicating that an individual employed by [Wife]’s counsel’s office mailed the motion to convert the separation order, notice of the court date, and a proposed order to [Husband] at the physical address provided by [Husband]’s former counsel.” The Husband did not appear at the hearing, but the Wife’s counsel confirmed that he “was provided with notice of the motion,” and that while he “had not formally responded to the motion” that her client, the Wife was “in contact” with the Husband and that he was “well aware” of the motion. The commissioner granted the Wife’s motion and converted the legal separation order to a final divorce decree. The Husband appealed, self-represented. He argued that service was improper, among a few other things.
In an unpublished opinion, the The Court of Appeals of Washington confirmed that the Rules provided that “no earlier than six months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution of marriage or domestic partnership.” The court also noted that, “once an action has been commenced, the requirements for serving subsequent pleadings and motions are ‘far less rigorous’.” “The law in Washington is clear. ‘Due process does not require new original process’ for a motion under [the Rules to convert].” Rule CR5 applies to “every pleading subsequent to the original complaint” and provides “that service of motions on a party ‘shall be made by delivering a copy to the party or the party’s attorney or by mailing it to the party’s or the party’s attorney’s last known address or, if no address is known, filing with the clerk of the court an affidavit of attempt to serve.”
The Husband also argued that the Hague Service Convention applied to the service of the Wife’s motion. The court stated, “Article 1 of the Hague Convention on Service provides that it applies in all cases ‘where there is occasion to transmit a judicial or extrajudicial document for service abroad.” The court further noted, “‘Service,’ within the meaning of the Hague Convention, refers to ‘formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.’” (citing to Schlunk, 486 U.S. at 700). Therefore, “[h]ere, because the sufficiency of service to initiate litigation against an individual in a foreign country is not an issue, the Hague Convention does not apply.”
