IN RE: the MARRIAGE OF Kristi Lee TSARBOPOULOS (2004)

Kristi Lee and Anthony Tsarbopoulos and their three children lived together in Greece for two years before Ms. Tsarbopoulos left with the children and moved to Colbert, Washington.   Mr. Tsarbopoulos has remained in Greece.   In this, her second attempt to dissolve her marriage, Ms. Tsarbopoulos directed a process server to serve Mr. Tsarbopoulos with a petition for dissolution.   The server left the documents at Mr. Tsarbopoulos's place of work, with a person who works with Mr. Tsarbopoulos.   Mr. Tsarbopoulos did not appear in the action, and a dissolution decree, parenting plan, and child support order were entered by default.   Several months later, Mr. Tsarbopoulos appeared and challenged jurisdiction based upon insufficient service of process.   The trial court agreed with Mr. Tsarbopoulos and granted his motion to vacate the orders for lack of jurisdiction.   Ms. Tsarbopoulos appeals.  RCW 26.27.081 provides that service may be effectuated either in a manner prescribed for service by the law of the state in which service is made or in any manner reasonably calculated to give notice.   Because we conclude that service upon Mr. Tsarbopoulos was both reasonably calculated to give him notice and effective under Greek law, we reverse the order of the trial court.

FACTS

Kristi Lee Tsarbopoulos and Anthony Tsarbopoulos were married on December 12, 1986, and separated on December 29, 1999.   They had three children together:  Harilaos (born October 21, 1992), Ioanna (born November 24, 1995), and Iason (born July 28, 1997).

Mr. Tsarbopoulos was born and raised in Greece.   He attended graduate school at Michigan State University.   From 1985 to 1987, Mr. Tsarbopoulos was employed at the Mayo Clinic in Rochester, Minnesota.   In 1987, the family relocated to New Jersey where Mr. Tsarbopoulos was employed at the Schering-Plough Research Institute.

In 1997, the family moved to Athens, Greece, where Mr. Tsarbopoulos currently resides.   In late December 1999, Ms. Tsarbopoulos and the children left Greece and moved to Colbert, Washington, to live with Ms. Tsarbopoulos's parents.   Ms. Tsarbopoulos alleged that Mr. Tsarbopoulos was emotionally and physically abusive to her and the children, and she left to escape the abuse.   See also Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045 (2001).

On January 6, 2000, a dissolution of marriage proceeding was instituted in Spokane County.   On April 17, 2000, the court entered an order finding that Mr. Tsarbopoulos did not have sufficient contact with the State of Washington to impose personal jurisdiction over him.   As a result, the dissolution action was dismissed in March 2002.

A second dissolution of marriage action was commenced on April 22, 2002.   Ms. Tsarbopoulos retained a Greek attorney who employed a process server to go to Mr. Tsarbopoulos's place of work in Athens.   Mr. Tsarbopoulos worked at an underground chemical laboratory in the Goulandris National History Museum.   Mr. Tsarbopoulos was not present when the process server attempted to effectuate service.   Consequently, the process server left the documents with Evangelos Gikas, whom the process server stated was Mr. Tsarbopoulos's “working assistant” at the museum.   Clerk's Papers (CP) at 23.

Mr. Tsarbopoulos failed to respond or appear in the matter, and an order of default was entered on August 12, 2002.   A decree of dissolution, parenting plan, and order of child support were entered on September 11, 2002.   The decree of dissolution awarded property to Ms. Tsarbopoulos in the amount of a payment of $63,500, reflecting Ms. Tsarbopoulos's one-half interest in a joint investment account.   The decree also ordered Mr. Tsarbopoulos to pay to Ms. Tsarbopoulos $10,000 for her attorney fees, and ordered him to pay child support.

The order of child support obligated Mr. Tsarbopoulos to pay $10,397.40 in back child support, and $2,599.35 per month from that date forward.   The parenting plan provided that the children would reside with Ms. Tsarbopoulos and imposed restrictions upon Mr. Tsarbopoulos's contact with the children and Ms. Tsarbopoulos.

Several months later, Mr. Tsarbopoulos appeared and moved to vacate the decree of dissolution, and the other orders that had been entered.   After a hearing, the court ordered the decree of dissolution vacated.   The court held that the service was ineffective under RCW 26.27.081.   Also, the court found that the long-arm jurisdiction under RCW 4.28.185 did not apply factually to this case.

The court allowed the parties to brief the issue of statutory interpretation through a motion for reconsideration.   On July 30, 2003, the court issued a memorandum opinion and order denying Ms. Tsarbopoulos's request for reconsideration.   The order states that Ms. Tsarbopoulos contends that the service was perfected under Greek law, and Mr. Tsarbopoulos disputes that assertion.   The court finds that both parties provide declarations supporting their positions, and therefore “[t]he court is without sufficient undisputed information and evidence to determine who is correct.   The burden is on the party who is asserting jurisdiction.”   CP at 281.

The court next states that under Washington law, the service would not have been sufficient.   The court stated, “[t]here are ways that notice could have been clearly given as required by the statute including personal service or service by mail.   Service by either of these methods would have resolved the problem for petitioner and would have assured that the respondent had notice.   Given the fact that such was not done and that the legality of service under Greek law is disputed, the court finds that notice and service requirements were not met.”   CP at 281-82.

Ms. Tsarbopoulos appeals.

ANALYSIS

Ms. Tsarbopoulos contends that the trial court erred in its interpretation of RCW 26.27.081 and its application of Greek law regarding service of process.

Due process requires that Mr. Tsarbopoulos be given notice and opportunity to be heard in accordance with the Uniform Child Custody Jurisdiction Act (UCCJA).  RCW 26.27.241(1).   Under the UCCJA, Washington courts are to treat the resident of a foreign country as if he or she were a resident of a sister state for purposes of applying articles 1 and 2. RCW 26.27.051(1).   Article 1 contains the notice provisions at issue here in RCW 26.27.081.

RCW 26.27.081.  RCW 26.27.081 provides:

(1) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed for service of process by the law of the state in which the service is made or given in a manner reasonably calculated to give actual notice, and may be made in any of the following ways:

(a) Personal delivery outside this state in the manner prescribed for service of process within this state;

(b) By any form of mail addressed to the person to be served and requesting a receipt;  or

(c) As directed by the court, including publication if other means of notification are ineffective.

This statute provides that notice may be given either in a manner prescribed for service by the law of the state in which service is made, or in any manner reasonably calculated to give notice.   Additionally, the statute provides that notice may be made by any of the enumerated methods.   The term used throughout the statute is “may.”

In interpreting a statute, the term “may” is presumed to be used in a permissive or discretionary sense.  Granite Beach Holdings, L.L.C. v. Dep't of Natural Resources, 103 Wash.App. 186, 206, 11 P.3d 847 (2000) (citing Amren v. City of Kalama, 131 Wash.2d 25, 35 n. 8, 929 P.2d 389 (1997)).   By contrast, the use of the word “shall” in a legislative enactment is presumptively mandatory, thus creating a duty.  Eugster v. City of Spokane 118 Wash.App. 383, 407, 76 P.3d 741 (2003), review denied, 151 Wash.2d 1027, 94 P.3d 959 (2004).   As a result, the use of the word “shall” in a statute or ordinance “ ‘imposes a mandatory requirement unless a contrary legislative intent is apparent.’ ”  Id. (quoting Erection Co. v. Dep't of Labor & Indus., 121 Wash.2d 513, 518, 852 P.2d 288 (1993)).

RCW 26.27.081 does not contain the word “shall” prior to the three methods provided for service.   As a result, the phrase “and may be made in any of the following ways” should be interpreted as providing permissive or discretionary methods rather than mandatory ones.   In other words, if the home state where service is effected provides for a method of service that is not one of the enumerated methods, as in this case, the statutory enumerated methods of service listed in RCW 26.27.081(1)(a)-(c) does not preclude methods of service approved by the home state.

Service under Greek Law. Next, the court must consider whether Ms. Tsarbopoulos's service of Mr. Tsarbopoulos was effective under Greek law.   The trial court found that both parties provided a declaration in support of their respective positions and therefore the court was “without sufficient undisputed information and evidence to determine who is correct.”   CP at 281.   The court reasoned that the burden was upon Ms. Tsarbopoulos to prove jurisdiction, and she failed to do so.

Both parties retained Greek attorneys to provide their interpretations of proper service under Greek law.   Ms. Tsarbopoulos's attorney, Titika Nikea-Mouratoglou, declared that the code of civil procedure provides that service of a judicial document may be effected at a person's residence, store, office, or laboratory.   She also stated that the law provides if the person is not present at these places, the documents may be left with a director of the store, office, or laboratory, or to one of the partners, colleagues, employees, or servants.

Mr. Tsarbopoulos's Greek attorney, Mr. D. Boubouris's declaration does not dispute Ms. Nikea-Mouratoglou's interpretation of the code.   His declaration states:

Under Greek law, service of a judicial document may be effected either at the residence of the person who is being served the document or at his place of employment or wherever else this person may be found.   For service of a judicial document at the place of employment to be legal and valid, it must only be effected at a private shop, office or laboratory and delivered in the hands of the director or one of the partners, associates, employees or servants․

CP at 114.   Mr. Boubouris asserts that service was not proper because Mr. Gikas, who accepted delivery of the documents, was not a director, partner, associate or permanent employee, but “a person ․ who works at the said Museum under neither of said capabilities.”   CP at 114.

Mr. Boubouris provides no analysis to support his assertion that Mr. Gikas, whom Mr. Boubouris admits works at the museum, did not qualify as a colleague or associate of Mr. Tsarbopoulos.   By contrast, Ms. Tsarbopoulos provided evidence in the record that Mr. Gikas has repeatedly collaborated with Mr. Tsarbopoulos in the course of Mr. Tsarbopoulos's work.   For example, Mr. Gikas and Mr. Tsarbopoulos have given joint presentations at conferences, and they have published several articles together about their joint projects and research.   Additionally, a website lists Mr. Tsarbopoulos as a biochemist and head of the Bioanalytical Lab, and also lists Mr. Gikas as a pharmacist under Mr. Tsarbopoulos.

Dismissal of a complaint for a lack of personal jurisdiction is a question of law subject to de novo review when the underlying facts are undisputed.   Harbison v. Garden Valley Outfitters, Inc., 69 Wash.App. 590, 595, 849 P.2d 669 (1993).   In this case, both Greek counsel agree upon the proper methods of service required under Greek law.

The undisputed evidence indicates that Mr. Tsarbopoulos and Mr. Gikas are associates, or have collaborated on many projects and research.   Additionally, the evidence shows both men work at the Goulandris National History Museum, Mr. Tsarbopoulos's place of employment.   We conclude that service was given in a manner reasonably calculated to give actual notice to Mr. Tsarbopoulos and was effectuated in a manner sufficient under Greek law.

Waiver. Finally, Ms. Tsarbopoulos contends that Mr. Tsarbopoulos waived his right to rely upon the defense of defective service of process.   She contends that Mr. Tsarbopoulos failed to ask for an immediate ruling by the court on his asserted defense, and instead chose to wait for nearly one year before he asserted the defense.   As a result, she argues, Mr. Tsarbopoulos waived his right to assert defective service.

Washington recognizes that in certain cases the common law doctrine of waiver will preclude assertion of insufficient service of process.  Lybbert v. Grant County, 141 Wash.2d 29, 38, 1 P.3d 1124 (2000).   If the defendant's assertion of the defense is inconsistent with his or her previous behavior, or if defendant's counsel has been dilatory in asserting the defense, insufficient service may be considered waived as a matter of law.  King v. Snohomish County, 146 Wash.2d 420, 424, 47 P.3d 563 (2002).

The King court noted, “[t]he doctrine is designed to prevent a defendant from ambushing a plaintiff during litigation either through delay in asserting a defense or misdirecting the plaintiff away from a defense for tactical advantage.”  Id. Further, the King court stressed the importance of raising procedural defenses “before any significant expenditures of time and money had occurred and at a time when the [plaintiff] could have remedied the defect.”  Id. at 426, 47 P.3d 563.

In this case, Mr. Tsarbopoulos appeared for the first time by filing a motion for relief from judgment on February 20, 2003.   In that motion, he argued that the judgment was void for lack of jurisdiction based upon insufficiency of process.   While Mr. Tsarbopoulos appeared rather late, approximately five months after the decree of dissolution and the related orders were entered, this delay alone will not support a finding of waiver.   Mr. Tsarbopoulos did not otherwise appear in the case, nor did he engage in discovery, file responsive pleadings, or behave in any manner inconsistent with an intent to assert this defense.   As a result, insufficient facts exist to support a finding of waiver.   The trial court did not err by declining to find that Mr. Tsarbopoulos waived his right to assert the defense of lack of jurisdiction based upon insufficient service of process.

We reverse the order of the superior court vacating the dissolution decree, parenting plan, and child support order.

KURTZ, J.

WE CONCUR:  SWEENEY, A.C.J., and SCHULTHEIS, J.