15 Wash. App. 254

[No. 1532-3.

Division Three.

April 6, 1976.]

Alice Staley, Appellant, v. Raeford D. Staley, Respondent.

Gerald L. Mikesell, Charles C. Flower, and Wilson & Flower, for appellant.

Perry J. Robinson, for respondent.

Munson, J.

Alice Staley appeals from an order vacating an in rem default judgment and setting aside a subsequent sheriff’s sale at which she purchased certain real property owned by the defendant, Raeford D. Staley.

Appellant contends the trial court erred in concluding that the respondent was entitled to adequate notice of the attachment of his real property and an opportunity for hearing thereon prior to entry of judgment. We affirm.

Mr. and Mrs. Staley were married in 1971. In 1972, Mrs. Staley commenced an action for divorce by filing a summons and complaint, neither of which were apparently served. On June 8, 1973, she filed an amended complaint, seeking in addition to a dissolution a judgment in the amount of $2,500 as a property settlement and $550 in attorney’s fees. She stated in her amended complaint that “simultaneously with the filing of this Amended Complaint” *255she had attached defendant’s interest in the described real property (RCW 7.12.0201) located within the city of Yakima and that the property would be sold and the proceeds applied toward satisfaction of the judgment in the amount of $3,050. Concurrently with the filing of the amended complaint, she filed an affidavit in support of her request for issuance of a writ of attachment, as well as a motion and affidavit seeking service by publication of the amended complaint pursuant to RCW 4.28.100 (4),2 i.e., an action for divorce. Following the customary language, the published notice merely stated: “The object of this action is to obtain a divorce.”

On October 12,1973, the court entered a default decree of *256divorce and a judgment in rem against Mr. Staley. Findings in support of the dissolution provided: (a) that Mr. Staley had left the state to avoid service of process in this action; (b) that Mr. Staley owned certain described real property which had been attached and was subject to the jurisdiction of the court; (c) that Mrs. Staley was to be awarded a judgment in rem against the interest Mr. Staley held in the real property in the amount of $3,050; and (d) that the property was to be sold in satisfaction of the judgment. Thereafter, the property was sold at sheriff’s sale to Mrs. Staley.

Within 1 year following entry of the decree of dissolution and judgment, Mr. Staley moved to vacate the judgment awarding Mrs. Staley the sum of $3,050 to be satisfied against his interest in the realty.3 A hearing was held and the court granted Mr. Staley’s motion, concluding that the published notice did not afford the defendant adequate notice of the attachment of his property nor an opportunity to be heard thereon prior to entry of the judgment; thus, the writ issued in violation of the defendant’s constitutional right to due process of law.

Due process of law as provided by the fourteenth amendment to the United States Constitution and article 1, section 3 of the Washington State Constitution requires *257adequate notice and an opportunity to be heard prior to deprivation of a significant property interest. North Georgia Finishing, Inc. v. DI-Chem, Inc., 419 U.S. 601, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975); State v. One 1972 Mercury Capri, 85 Wn.2d 620, 537 P.2d 763 (1975); Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 511 P.2d 1002 (1973); Sniadach v. Family Fin. Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969); Seattle Credit Bureau v. Hibbitt, 7 Wn. App. 219, 499 P.2d 92 (1972); Lucas v. Stapp, 6 Wn. App. 971, 497 P.2d 250 (1972). In certain instances, this procedure may be postponed until subsequent to the seizure; but nevertheless, an adequate notice and meaningful opportunity to be heard must be afforded prior to judgment. In Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), the court, after setting forth the general rule, noted at pages 90-91:

There are “extraordinary situations” that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut [401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971)], 401 U.S., at 379. These situations, however, must be truly unusual. Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing.

(Footnote omitted.) See Mitchell v. W.T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974); Thompson v. DeHart, 84 Wn.2d 931, 530 P.2d 272 (1975).

Until adequate notice, actual or constructive, is given, the court has no jurisdiction to proceed to judgment. Ware v. Phillips, 77 Wn.2d 879, 468 P.2d 444 (1970),4 and authority cited therein. RCW 4.28.110 requires that the “publication shall also contain a brief statement of the object of the action.” To state that object as an action for divorce complies with the requirements of due process where the only result sought is a dissolution. Where the prayer of the complaint requests additional relief such as *258the distribution of property, however, merely stating the action is for divorce does not comport with due process.5 This notice, having failed to inform the defendant of the attachment of his property and that such would be sought in satisfaction of judgment,6 violated the due process requirements of the fourteenth amendment to the United States Constitution7 and article 1, section 3 of the Washington State Constitution.

*259We do not decide whether notice of attachment in a dissolution proceeding must precede the attachment. Here, no notice of attachment was ever afforded the defendant at any time prior to judgment. We do not decide whether the defendant’s unavailability for service constitutes an “extraordinary circumstance” permitting the attachment and postponement of notice until subsequent to the seizure. We are familiar with footnote 23 of Fuentes v. Shevin, supra at 91, which states that where attachment is necessary for jurisdictional purposes, such constitutes an extraordinary circumstance. That comment does not eliminate the requirement of adequate notice. Furthermore, had the defendant been provided adequate notice of the prayer in the amended complaint, the court may have had in personam jurisdiction over the defendant’s negating the necessity for an attachment to acquire in rem jurisdiction. See Dobbins v. Beal, 4 Wn. App. 616, 620, 483 P.2d 874 (1971). These determinations must await an appropriate case.

Judgment affirmed.

McInturff, C. J., and Green, J., concur.

Staley v. Staley
15 Wash. App. 254

Case Details

Name
Staley v. Staley
Decision Date
Apr 6, 1976
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15 Wash. App. 254

Jurisdiction
Washington

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