In Re The Marriage Of Shruti R. Van Wicklen, V. Robert William Van Wicklen
81862-7
| Wash. Ct. App. | Jul 26, 2021Background
- Shruti filed for dissolution in Feb 2019 after separating in Nov 2018; Robert left the marital home and stayed with his parents in New York for some time.
- Shruti emailed the petition to Robert and hired process servers who attempted service four times over five days at the Monroe marital home, called his cell twice, and left voicemails; Robert did not respond; his mother said he had left the house and would not reveal his location.
- Shruti moved to serve by mail (alleging Robert was hiding); a commissioner authorized service by mail in March 2019; Robert was mailed the papers and did not timely respond.
- A commissioner entered default in Aug 2019; later events included appointment of a special master, Robert obtaining counsel, responding to discovery and the petition, and moving in May 2020 to vacate the default based on excusable neglect and improper service.
- The trial court denied Robert’s motion to vacate, found service by mail proper, and entered final dissolution orders; Robert appealed claiming lack of personal jurisdiction due to improper substituted service.
Issues
| Issue | Shruti's Argument | Robert's Argument | Held |
|---|---|---|---|
| Whether Robert waived a personal-jurisdiction challenge | Robert requested affirmative relief in his answer (division of property), so he waived the defense | Service was improper and jurisdiction never attached regardless of his later requests | Waived — asking for affirmative relief and litigating the case forfeited timely jurisdictional objection |
| Whether Shruti conducted a diligent search before seeking substituted service | She made honest, reasonable efforts: emailed petition, multiple server attempts, calls, and contacted Robert’s mother | Four attempts were insufficient; she should have tried more means (neighbors, PI, other addresses) | Diligent — four attempts + follow-up contacts and known leads were reasonable under the circumstances |
| Whether Robert concealed himself or left WA to avoid service | His e-mails refusing to communicate unless petition withdrawn, nonresponses to servers, mother’s statement, and physical absence support intent to avoid service | He was simply hard to find or temporarily out of state, not acting with intent to avoid service | Concealment/intent found — facts support inference he intended to avoid service |
| Whether service by mail was likely to give notice as effectively as publication | Monroe marital home was his last known mailing address; mail was likely more effective than publication | Publication might be better; mail to a home he no longer occupied was ineffective | Service by mail was a proper substitute for publication here and was likely to give notice |
Key Cases Cited
- Pascua v. Heil, 126 Wn. App. 520 (Wash. Ct. App. 2005) (sets standards for diligent search and substitute service)
- Martin v. Meier, 111 Wn.2d 471 (Wash. 1988) (strict compliance required for substituted service)
- Lybbert v. Grant County, 141 Wn.2d 29 (Wash. 2000) (waiver may be inferred from inconsistent conduct or dilatory defense)
- Sutton v. Hirvonen, 113 Wn.2d 1 (Wash. 1989) (lack of personal jurisdiction must be raised in answer or pre-answer motion)
- In re Marriage of Steele, 90 Wn. App. 992 (Wash. Ct. App. 1998) (appearance/affirmative relief may constitute consent to jurisdiction if challenge not timely raised)
- Boes v. Bisiar, 122 Wn. App. 569 (Wash. Ct. App. 2004) (diligence judged by steps taken given what plaintiff knew)
- Cito v. Rios, 3 Wn. App. 2d 748 (Wash. Ct. App. 2018) (example of more extensive attempts supporting diligent search)