Supreme Court of the State of Washington                                                                                          
                                                                                                                                                      
                            Opinion Information Sheet                                                                                                 
                                                                                                                                                      
Docket Number:       65617-7                                                                                                                          
Title of Case:       In RE the Marriage Of: Victor P. Himes and                                                                                       
                     v.                                                                                                                               
                     Frances A. Himes V. Janana Macintyre Himes                                                                                       
File Date:           10/29/98                                                                                                                         
Oral Argument Date:  05/12/98                                                                                                                         
                                                                                                                                                      
                                                                                                                                                      
                                SOURCE OF APPEAL                                                                                                      
                                ----------------                                                                                                      
Appeal from Superior Court,                                                                                                                           
            Snohomish County;                                                                                                                         
            87-3-02242-2                                                                                                                              
            Honorable David F. Hulbert, Judge.                                                                                                        
                                                                                                                                                      
                                                                                                                                                      
                                    JUSTICES                                                                                                          
                                    --------                                                                                                          
Authored by Charles Z. Smith                                                                                                                          
Concurring: Barbara Durham                                                                                                                            
            James M. Dolliver                                                                                                                         
            Richard P. Guy                                                                                                                            
            Charles W. Johnson                                                                                                                        
            Barbara A. Madsen                                                                                                                         
            Gerry L. Alexander                                                                                                                        
            Philip A. Talmadge                                                                                                                        
            Richard B. Sanders                                                                                                                        
                                                                                                                                                      
                                                                                                                                                      
                                COUNSEL OF RECORD                                                                                                     
                                -----------------                                                                                                     
Counsel for Petitioner(s)                                                                                                                             
            Kent Millikan                                                                                                                             
            3411 Colby Avenue                                                                                                                         
            Everett, WA  98201-4709                                                                                                                   
                                                                                                                                                      
Counsel for Respondent(s)                                                                                                                             
            Christopher E. Fletcher                                                                                                                   
            Attorney At Law                                                                                                                           
            1275 3rd St.                                                                                                                              
            PO Box 97                                                                                                                                 
            Blaine, WA  98231                                                                                                                         
                                                                                                                                                      
                                                                                                                                                      
                                                                                                                                                      
IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                                                                       
                                                                                                                                                      
                                                 )                                                                                                    
IN RE THE MARRIAGE OF                            ) Number 65617-7                                                                                     
VICTOR P. HIMES, DECEASED,                       )                                                                                                    
                                                 )                                                                                                    
AND FRANCES A. HIMES,                            )                                                                                                    
                                                 )                                                                                                    
          Petitioner,                            )                                                                                                    
                                                 )                                                                                                    
          v.                                     ) En Banc                                                                                            
                                                 )                                                                                                    
JANANA MACINTYRE-HIMES,                          )                                                                                                    
                                                 )                                                                                                    
          Respondent.                            )                                                                                                    
                                                 ) Filed October 29, 1998                                                                             
                                                 )                                                                                                    
                                                                                                                                                      
     SMITH, J. Petitioner Frances A. Himes seeks review of a decision by                                                                              
the Court of Appeals, Division I, which reversed a decision by the                                                                                    
Snohomish County Superior Court granting Petitioner's motion to vacate a                                                                              
default dissolution decree obtained prior to his death by Victor P. Himes,                                                                            
deceased, granting Petitioner's motion for declaratory judgment that she is                                                                           
the lawful surviving spouse of Victor P. Himes and that the subsequent                                                                                
"remarriage" of Victor P. Himes to Respondent Janana MacIntyre-Himes is                                                                               
invalid, and granting Petitioner's motion for summary judgment against                                                                                
Respondent Janana MacIntyre-Himes for relinquishment of United States Navy                                                                            
surviving spouse benefit payments she has received following the death of                                                                             
Victor P. Himes.   We granted review.   We reverse the Court of Appeals and                                                                           
affirm the trial court.                                                                                                                               
                                                                                                                                                      
QUESTIONS PRESENTED                                                                                                                                   

The questions presented in this case are: (1) whether a superior court may                                                                            
vacate a dissolution decree after the death of Victor P. Himes, one of the                                                                            
parties to the marriage; (2) whether evidence offered by Petitioner Frances                                                                           
A. Himes, the surviving party to the marriage, is sufficient to vacate a                                                                              
default dissolution decree for fraud; and (3) whether Petitioner Frances A.                                                                           
Himes was denied notice and an opportunity to respond to the default                                                                                  
dissolution in violation of due process with the consequence that the                                                                                 
judgment is void.                                                                                                                                     

STATEMENT OF FACTS                                                                                                                                    

Petitioner Frances A. Himes and Victor P. Himes were married in Oakland,                                                                              
Maryland on October 1, 1960.1  They reared two children.  Mr. Himes served                                                                            
in the United States Navy during most of the years of their marriage.2 On                                                                             
October 20, 1973 Mr. Himes requested a Navy transfer to New Bethlehem,                                                                                
Pennsylvania because of illness in the family, stating that he had sent his                                                                           
"family and household goods back to Pennsylvania."  The enlisted transfer                                                                             
and special duty request listed "RD #3, New Bethlehem, Pennsylvania 16615"                                                                            
as the address and location of his dependents and household effects.3                                                                                 
The Himeses lived together at their home in New Bethlehem, Pennsylvania                                                                               
until 1975 when Mr. Himes was transferred by the Navy to the State of                                                                                 
Washington.  His wife and their two children remained in New Bethlehem,                                                                               
Pennsylvania at the same address.   In 1982 the wife came to Oak Harbor,                                                                              
Washington and lived with her husband until they separated three months                                                                               
later.  She returned to the family home at "Route 3, Box 251, New                                                                                     
Bethlehem, Pennsylvania" where she continues to reside.4  Although living                                                                             
separate and apart from her husband, Petitioner Frances A. Himes continued                                                                            
in the status of a Navy dependent, receiving a dependent's allotment and                                                                              
medical insurance coverage.5                                                                                                                          
After 30 years of service, Victor P. Himes retired from the Navy in 1984.                                                                             
Throughout his naval career, he authorized deductions from his salary for                                                                             
retirement and survivor benefit plan (SBP).  The SBP provided that, in the                                                                            
event he died before his wife, she would receive an annuity as his                                                                                    
surviving spouse.6                                                                                                                                    
On September 1, 1987 Victor P. Himes filed a "do-it-yourself" form                                                                                    
affidavit of service for summons by publication7in a petition for                                                                                    
dissolution of marriage in the Snohomish County Superior Court.  The                                                                                  
affidavit stated he could not locate his wife, Frances A. Himes:8                                                                                     
I believe that the Respondent is not a resident of this state or if he                                                                                
(she) is in the State of Washington he (she) is concealing himself                                                                                    
(herself) to avoid service of this Summons, herein.  I have made careful                                                                              
inquiry of relations, friends and business associates of the Respondent and                                                                           
I cannot learn of his (her) present whereabouts after due diligence.  I                                                                               
know of no address to which I could mail the Summons to the Respondent.                                                                               
                                                                                                                                                      
(Emphasis supplied).                                                                                                                                  
A decree was granted by the Whatcom County Superior Court on                                                                                          
December 21, 1987, ostensibly dissolving the marriage of Victor P. Himes                                                                              
and Petitioner Frances A. Himes.   On that date a Court Commissioner signed                                                                           
a decree of dissolution of marriage, finding that "jurisdiction of the                                                                                
parties was obtained by {s}ervice of process or publication, and the                                                                                  
Respondent has failed to appear herein."9                                                                                                             
In 1988 Victor P. Himes met Janana McIntyre.10  They were married on                                                                                  
July 31, 1993 in Whatcom County, Washington.11    On August 14, 1994 Mr.                                                                              
Himes died.  His certificate of death named "Janana Malmgren" as his                                                                                  
surviving spouse.12    In his will dated July 27, 1994, Victor P. Himes                                                                               
named his "spouse, Janana J. MacIntyre" as sole beneficiary and                                                                                       
administrator of his estate.13  Upon Mr. Himes' death, Ms. Janana MacIntyre-                                                                          
Himes began receiving monthly annuity payments of $514.00 to $528.00 from                                                                             
the Navy as his surviving spouse.14                                                                                                                   
Petitioner Frances A. Himes first learned of the 1987 dissolution in March                                                                            
1994 when the Navy informed her it had terminated her medical insurance.                                                                              
Until that time, she had remained a medical dependent of her husband.  The                                                                            
Navy had always used her address which had not changed in the past 21                                                                                 
years.15                                                                                                                                              
In a letter from the Department of Defense dated March 15, 1995, Tim                                                                                  
Zelenak of Technical Section, Retired Pay Operations, responded to a                                                                                  
request from Petitioner Frances A. Himes' attorney concerning the date                                                                                
Victor P. Himes notified the Navy of a change in his marital status:16                                                                                
A review of his record does not reflect this action on the member's part.                                                                             
In all probability, the dissolution of his first marriage and subsequent                                                                              
marriage was discovered as part of the certification process required to                                                                              
establish the beneficiary's eligibility for these {surviving spouse}                                                                                  
benefits.                                                                                                                                             
                                                                                                                                                      
On December 23, 1994, Petitioner Frances A. Himes filed a motion to vacate                                                                            
the dissolution decree in the Superior Court of Snohomish County under                                                                                
Civil Rule (CR)                                                                                                                                       
60(b),17 claiming that Victor P. Himes obtained the dissolution through                                                                               
fraud18 and that it was void because the court had no jurisdiction.19  By                                                                             
letter to counsel dated                                                                                                                               
February 28, 1995, Commissioner Arden J. Bedle denied Petitioner's motion                                                                             
to vacate the dissolution decree:20                                                                                                                   
I find that the passage of time should prevent the motion to vacate to be                                                                             
granted.  Even if there is some defect in the jurisdiction of the Court,                                                                              
and the Decree deemed void, there can still be waiver or estoppel. . . In                                                                             
the case at bar, the long separation with no contact, and no action taken                                                                             
by the moving party to find the decedent, constitutes grounds to find that                                                                            
she be estopped from attempting to vacate the Decree, even if it is void.                                                                             
                                                                                                                                                      
I find that setting aside the decree is contrary to public policy in that                                                                             
it would "undivorse" {sic} the decedent.  In setting aside a dissolution                                                                              
default decree which would "undivorse" {sic} the parties. . . Among other                                                                             
reasons, this public policy is meant to protect the innocent new spouse.                                                                              
                                                                                                                                                      
In a declaration filed in the Snohomish County Superior Court on                                                                                      
December 23, 1994, Ms. Keitha Hetrick, sister of Victor P. Himes, stated                                                                              
that her brother was at all times aware of her home address in Bethlehem,                                                                             
Pennsylvania where she had lived for the past 23 years:21                                                                                             
I live at Route 3, Box 200, Bethlehem, Pennsylvania, near the address of                                                                              
his wife, Frances A. Himes.  I have known where Frances A. Himes has lived                                                                            
for at least the past 21 years.   She has been living at Route 3, Box 251,                                                                            
New Bethlehem, Pennsylvania, 16242, since 1973.                                                                                                       
At no time was I ever contacted by my brother, Victor Paul Himes, nor                                                                                 
anyone else on his behalf, requesting information on the whereabouts or                                                                               
address of Frances A. Himes, nor did I ever learn of any divorce                                                                                      
proceedings that he had filed until I was so informed this year, 1994, by                                                                             
my sister-in-law, Frances A. Himes.                                                                                                                   
                                                                                                                                                      
In a declaration filed in the Snohomish County Superior Court on March 10,                                                                            
1995, Ms. Robyn E. Himes, daughter of Victor P. and Frances A. Himes,                                                                                 
stated she remained in contact with her father after her parents separated                                                                            
in 1982 and that he did not contact her in 1987 before he filed the                                                                                   
affidavit claiming he did not know the whereabouts of his wife, her mother:22                                                                         
In 1987, I received no phone call, nor letter, nor other contact from my                                                                              
father, Victor Himes, attempting to locate my mother, Frances Himes.   My                                                                             
father knew my address during that year from the letters I wrote him.  He                                                                             
never notified me that he had obtained a divorce from my mother in 1987.                                                                              
                                                                                                                                                      
After his death in August, 1994, I received a phone call from Janana                                                                                  
MacIntyre Himes informing me of his death.  She told me she had gone to his                                                                           
apartment and looked through his letters and correspondence and found my                                                                              
address, and had also found the address of his sister, Ketha Hettrick,                                                                                
{sic} whom she tried to contact also.                                                                                                                 
                                                                                                                                                      
On April 14, 1995, Petitioner filed a motion for revision of the                                                                                      
commissioner's decision.23  By memorandum dated June 9, 1995 the Honorable                                                                            
David F. Hulbert granted revision of Commissioner Bedle's decision:24                                                                                 
The Commissioner seems to suggest that knowledge of the divorce should be                                                                             
implied to Wife #1 simply because of the length of her separation.                                                                                    
However, the mere fact that Wife #1 and Husband were separated for many                                                                               
years has no bearing on their legal relationship as husband and wife.  Why                                                                            
should Wife #1 assume that she was being divorced simply because of the                                                                               
passage of time (especially when, as she alleges, Husband knew her                                                                                    
whereabouts)?                                                                                                                                         
                                                                                                                                                      
The reasonable time analysis should begin to run when Wife #1 actually                                                                                
learned of the divorce.  She filed a Motion to Vacate within eight months                                                                             
of learning of the divorce; that appears reasonable.  Therefore, the time                                                                             
limits of CR 60(b) are not a bar to Wife #1's Motion to Vacate.                                                                                       
                                                                                                                                                      
In granting the motion for revision, Judge Hulbert concluded "the                                                                                     
controversy was not extinguished when Victor Himes died, and Frances Himes                                                                            
may proceed with a Motion to Vacate the Decree of Dissolution."  On June                                                                              
27, 1995, Respondent Janana MacIntyre-Himes filed a motion for                                                                                        
reconsideration25 which Judge Hulbert denied on June 29, 1995.26                                                                                      
On July 25, 1995, Judge Hulbert signed an order vacating the decree of                                                                                
dissolution.  Concluding that the death of Victor P. Himes did not preclude                                                                           
vacation of the dissolution decree, the court directed "Janana MacIntyre                                                                              
Himes to pay into the registry of the court all military pension proceeds                                                                             
or other funds she receives as a surviving spouse, . . . commencing July 1,                                                                           
1995."27                                                                                                                                              
On August 3, 1995, Respondent Janana MacIntyre-Himes filed a notice of                                                                                
appeal which was received by the Court of Appeals, Division I, on August 8,                                                                           
1995.  On August 15, 1995, Petitioner Frances A. Himes filed a notice of                                                                              
cross-appeal.28                                                                                                                                       
While the decision of the Court of Appeals was pending, Petitioner Frances                                                                            
A. Himes on January 25, 1996 filed a motion for summary judgment and                                                                                  
declaratory judgment in the Snohomish County Superior Court.29  On March 14,                                                                          
1996 the Honorable Gerald L. Knight granted her motion, finding there was                                                                             
no genuine issue of material fact after Judge Hulbert's order vacating the                                                                            
December 21, 1987 dissolution decree:30                                                                                                               
. . . .                                                                                                                                               
                                                                                                                                                      
2.  Respondent Frances A. Himes is the lawful surviving spouse of Victor P.                                                                           
Himes, deceased, and the subsequent "remarriage" of Victor P. Himes to                                                                                
Janana Macintyre-Himes, the Third Party Defendant, was invalid.                                                                                       
                                                                                                                                                      
3. Respondent Frances A. Himes is entitled to receive the U.S. Navy                                                                                   
Retirement SBP on the account of Victor P. Himes, deceased.                                                                                           
                                                                                                                                                      
4. Respondent is hereby awarded judgment against Janana Macintyre-Himes,                                                                              
the Third Party Defendant, for the amount of all such Navy SBP payments                                                                               
previously received by her through the month of June 1995, in the total sum                                                                           
of $5,224.00, plus interest from July 1, 1995 through March 1, 1996, in the                                                                           
amount of $417.92 and continuing to accrue from March 2, 1996 until paid at                                                                           
the statutory rate of 12% per annum, together with her statutory attorney                                                                             
fees of $125.00 and statutory costs of $42.50 service of process.                                                                                     
                                                                                                                                                      
In an unpublished opinion, the Court of Appeals, Division I, on May 5, 1997                                                                           
reversed the trial court's decision:31                                                                                                                
We must adhere to the ruling in the seminal case of Dwyer v. Nolan,32 and                                                                             
its progeny.  Thus, we are required to reverse.  After the death of either                                                                            
of the parties the subject matter of dissolution action is eliminated, the                                                                            
action abates, and the surviving spouse cannot move to vacate.  This is so                                                                            
despite the fact that Victor obtained the decree by default after filing a                                                                            
false affidavit to the effect that Frances could not be located. . . . This                                                                           
action was framed only as one for vacation for the decree of divorce to                                                                               
indirectly allow Frances benefits by virtue of the resulting reinstatement                                                                            
of her marital status at the time of Victor's death.  This we cannot allow.                                                                           
Despite Victor's false affidavit, the family court had in rem jurisdiction                                                                            
to dissolve the marriage.33  The decree obtained is thus voidable, not void                                                                           
as Frances contends.  This voidable status of the decree results in                                                                                   
abatement on the death of one of the parties as is the case here.  This                                                                               
result preserves the validity of Victor's second marriage, an important                                                                               
policy under Washington law.                                                                                                                          
                                                                                                                                                      
Petitioner Frances A. Himes sought discretionary review which this Court                                                                              
granted on December 5, 1997.                                                                                                                          
                                                                                                                                                      
DISCUSSION                                                                                                                                            

Petitioner Frances A. Himes contends that Victor A. Himes, deceased, in                                                                               
1987 prior to his death obtained a purported decree of dissolution of their                                                                           
marriage in the Snohomish County Superior Court by filing a false affidavit                                                                           
of service by publication.  She argues that she did not have notice of or                                                                             
an opportunity to respond to the default dissolution.  She concludes that                                                                             
consequently the dissolution is void because the court had no jurisdiction                                                                            
over the parties.                                                                                                                                     
Respondent Janana MacIntyre-Himes asserts that Washington courts have long                                                                            
held that a dissolution action abates upon the death of one of the parties                                                                            
unless the decree involved the rights of third parties.   She argues the                                                                              
court had in rem jurisdiction to dissolve the marriage because Victor P.                                                                              
Himes properly served Petitioner by publication.  Respondent contends that                                                                            
Petitioner's evidence to support her claim of fraud is inadmissible under                                                                             
the "dead man's statute" which precludes testimony concerning conversations                                                                           
and transactions with a deceased person.  She concludes that upon the death                                                                           
of Victor P. Himes the court had no authority to vacate the 1987 default                                                                              
dissolution decree.                                                                                                                                   
                                                                                                                                                      
Vacating Dissolution Decree After Death of a Party                                                                                                    
Petitioner asserts that Washington is the only state that precludes courts                                                                            
from vacating a dissolution decree after the death of one of the parties.34                                                                           
She urges this Court to reconsider this position which was first                                                                                      
established by the Court in 1905 in Dwyer v. Nolan.35                                                                                                 
In Dwyer, after the death of her former husband, the wife sought to vacate                                                                            
their dissolution decree, contending that the superior court acted without                                                                            
jurisdiction and the judgment was therefore void.  This Court denied her                                                                              
motion to vacate the judgment:36                                                                                                                      
We will not enter into an investigation of the question presented as to                                                                               
whether or not the service in the divorce proceeding was sufficient to give                                                                           
the court jurisdiction of the person of the defendant, for the reason that                                                                            
there are no proper parties to this proceeding, and in the nature of                                                                                  
things, the plaintiff having died, that the question of divorce cannot be                                                                             
relitigated.  It will not be gainsaid that an action for divorce is a                                                                                 
purely personal action.  Nothing is sought to be affected but the marital                                                                             
status of the husband and wife.  The distribution of property in such an                                                                              
action is incidental, and it is clearly incontestable that upon the death                                                                             
of either party, whether before or after the decree, the subject of the                                                                               
controversy is eliminated.                                                                                                                            
                                                                                                                                                      
Petitioner argues that the Court almost a century ago established this "ill-                                                                          
conceived, shortsighted, and harsh rule" unaware of its effect on future                                                                              
cases like this where marital status determines annuity rights and relief                                                                             
can be granted only by vacating the dissolution decree.  Petitioner asserts                                                                           
that, given the increasing prevalence of surviving spouse benefit plans                                                                               
offered under federal, state, and private annuities, dissolutions are no                                                                              
longer "purely personal actions" because they involve substantial property                                                                            
rights.                                                                                                                                               
Petitioner asserts that in Osborne v. Osborne,37 in which the wife sought to                                                                          
vacate a dissolution decree primarily on the basis of fraud, this Court                                                                               
invited reexamination of the rule in a future and proper case:                                                                                        
It may be that this rule is harsh and is more restrictive than the rule in                                                                            
other jurisdictions.  There may be good reasons why this court should                                                                                 
reconsider the rule and perhaps modify it.  But if such reasons exist, they                                                                           
have not been presented in the appellant's brief, and we therefore do not                                                                             
feel called upon to go in search of them at this time.                                                                                                
                                                                                                                                                      
Another reason why this court is reluctant to view the present case as a                                                                              
proper one in which to reexamine the rule that has been laid down regarding                                                                           
the vacation of a divorce decree after death of a party, is that the                                                                                  
appellant's affidavit does not allege facts which clearly show that the                                                                               
decree was fraudulently obtained.                                                                                                                     
                                                                                                                                                      
Petitioner argues that those "good reasons" for reexamination of the rule                                                                             
exist in this case because Victor P. Himes obtained the dissolution decree                                                                            
by filing a false affidavit.  She asserts that, although the court did not                                                                            
distribute any physical property, the dissolution nevertheless deprived her                                                                           
of surviving spouse benefits, a property interest of considerable value.                                                                              
According to Petitioner, she had no notice of nor an opportunity to respond                                                                           
to the dissolution with the consequent violation of her constitutional due                                                                            
process rights.                                                                                                                                       
Petitioner contends that in all other reported jurisdictions, courts may                                                                              
vacate a dissolution after the death of one of the parties based upon                                                                                 
equitable principles.38  She cites the Maryland case of Connelly v.                                                                                   
Connelly,39 which also involved entitlement to Navy pension benefits.  In                                                                             
that case, the wife filed a motion to vacate a dissolution decree 26 months                                                                           
after she discovered her former husband had obtained the decree through                                                                               
fraud.  The court vacated the decree even though the husband had since                                                                                
remarried and died, holding that "{l}apse of time will not bar relief where                                                                           
circumstances exist which excuse the delay and render it inequitable to                                                                               
interpose the bar."40                                                                                                                                 
According to Petitioner, the facts in this case justify reexamining and                                                                               
overruling Dwyer and Crockett and adopting the more flexible rule announced                                                                           
in the Restatement of the Law, Conflict of Laws 2d, sec.74:41                                                                                         
A person may be precluded from attacking the validity of a foreign divorce                                                                            
decree if, under the circumstances, it would be inequitable for him to do                                                                             
so.                                                                                                                                                   
                                                                                                                                                      
Petitioner asserts that a corollary to this rule is the courts should                                                                                 
decide on equitable grounds whether to vacate a dissolution decree after                                                                              
death of one of the parties.                                                                                                                          
Petitioner argues that, in weighing the equitable factors in this case,                                                                               
Respondent's assertions are "hardly worthy of much weight on the scales of                                                                            
justice."  Petitioner contends she is an innocent victim of fraud who did                                                                             
not learn of the 1987 default dissolution decree until March 1994 and then                                                                            
only after she was notified by the Navy that it had terminated her                                                                                    
dependent's medical benefits.  Petitioner argues that, even after their                                                                               
separation in 1982, she remained in contact with her husband and remained a                                                                           
Navy dependent spouse and therefore had no reason to suspect her husband                                                                              
had obtained a dissolution of their marriage.  Petitioner asserts that she                                                                            
filed a petition to vacate the decree within eight months after learning of                                                                           
the dissolution and her proceeding should not therefore be subject to the                                                                             
equitable defenses of laches and estoppel.                                                                                                            
Petitioner points out that there are no children from her husband's                                                                                   
marriage to Respondent MacIntyre-Himes, who was married to Victor P. Himes                                                                            
only for a year, the minimum eligibility time for a surviving spouse                                                                                  
annuity under federal law.  Petitioner asserts that Respondent was                                                                                    
apparently self-supporting before she married Mr. Himes.  She argues that                                                                             
vacating the decree would not "inequitably disturb {Respondent's} interest                                                                            
of reliance on the judgment."                                                                                                                         
Petitioner asserts that she was married to Mr. Himes for 27 years prior to                                                                            
the 1987 dissolution, reared their two children, faithfully remained his                                                                              
wife, and received and expected to continue to receive dependent spouse                                                                               
benefits from the Navy.  She emphasizes that she manages a fabric shop and                                                                            
upon retirement she would have no other income than Social Security                                                                                   
benefits.                                                                                                                                             
Citing Dwyer v. Nolan,42 Respondent argues that under controlling Washington                                                                          
decisions, the death of Victor P. Himes on August 14, 1994 deprived the                                                                               
court of jurisdiction to vacate the dissolution decree. Citing MacPherson                                                                             
v. MacPherson, Respondent argues that this Court has long held that "an                                                                               
action for divorce proper, being purely a personal action based upon                                                                                  
personal relationship and status of marriage, terminates with the death of                                                                            
either spouse, not only because of its personal character, but because the                                                                            
marriage is ipso facto dissolved by death."43                                                                                                         
In MacPherson, the trial court entered an interlocutory divorce decree in                                                                             
favor of the wife and settled the property rights of the parties.  The                                                                                
husband appealed the interlocutory order.   The wife died before the court                                                                            
entered a final divorce decree.  The executor for the wife's estate argued                                                                            
that the interlocutory decree with respect to property rights did not abate                                                                           
upon the death of the wife.  The Court stated that it has "long recognized                                                                            
the rule that where the main purpose of a divorce action fails, any                                                                                   
property settlement made therein, being only ancillary to and dependent                                                                               
upon the main purpose, also fails."44  The Court concluded it did not have                                                                            
authority to "reverse, modify, or affirm an interlocutory decree of                                                                                   
divorce, after the death of one of the parties to such decree, except where                                                                           
the rights of third parties were involved in the decree itself, and then                                                                              
only for the purpose of adjudicating the rights of such third persons."45                                                                             
Respondent argues that although MacPherson involved an interlocutory                                                                                  
decree, the Court adhered to the same ruling in Crockett v. Crockett46 which                                                                          
involved a final decree.   In Crockett, the husband sought a divorce while                                                                            
the wife was confined in a mental institution.  The court granted the                                                                                 
interlocutory decree and approved a property settlement agreed to by the                                                                              
wife's guardian ad litem.  The wife died seven years after the court                                                                                  
entered a final decree of divorce.  As administrator of his mother's                                                                                  
estate, decedent's son brought a motion to vacate the divorce decree                                                                                  
claiming it was void for fraud.  The Court determined there was no evidence                                                                           
in the record supporting fraud and, because the son was not a party to the                                                                            
divorce action, he was not a "proper party plaintiff."  The Court concluded                                                                           
that                                                                                                                                                  
           {T}he final decree of divorce in its entirety is a valid and                                                                               
binding decree, settling the rights of the parties thereto, which decree                                                                              
cannot be vacated by the administrator of Mrs. Crockett's                                                                                             
estate after her death.  In other words, the divorce action being purely a                                                                            
personal one, and one of the parties having died, the subject matter of the                                                                           
action has ceased to exist. . . .                                                                                                                     
                                                                                                                                                      
Respondent MacIntyre-Himes contends she is an innocent new spouse who                                                                                 
relied upon the validity and finality of her husband's dissolution decree.                                                                            
She emphasizes that Petitioner and Mr. Himes separated in 1982, the                                                                                   
dissolution decree was entered in 1987, she and Mr. Himes married in 1993,                                                                            
and Petitioner did not file her motion to vacate the decree until 1994.                                                                               
According to Respondent, the lapse of time twelve years after separation                                                                              
and seven years after dissolution estops Petitioner from challenging the                                                                              
validity of the 1987 default decree.   Respondent argues that Petitioner is                                                                           
precluded from relief under CR 60(b) which states that motions for vacating                                                                           
judgments "shall be made within a reasonable time" and Restatement of the                                                                             
Law 2d, Judgments 2d, sec.7447 which states that relief will be denied if                                                                             
barred by lapse of time or inequitable disturbance of an interest of                                                                                  
reliance on the judgment.                                                                                                                             
Respondent contends that because she is only employed as a part-time                                                                                  
bookkeeper/receptionist, she would face "extreme financial hardship"                                                                                  
without the Navy annuity benefits.   She asserts that Commissioner Bedle                                                                              
correctly concluded that "setting aside the decree is contrary to public                                                                              
policy in that it would undivor{c}e the decedent. . . . Among other                                                                                   
reasons, this public policy is meant to protect the innocent new spouse."                                                                             
The trial court disagreed with Commissioner Bedle and vacated the judgment                                                                            
for fraud under CR 60(b)(4).  Distinguishing Dwyer and Crockett, Judge                                                                                
David F. Hulbert stated he was persuaded by "musings of the court in                                                                                  
Osborne":48                                                                                                                                           
While Wife was alleging fraud in the Osborne case as well, it is apparent                                                                             
that the court did not find her facts particularly strong.  The Osborne                                                                               
court indicated that the issue should be revisited on the right facts. . .                                                                            
the right facts exist here.  The court rules that the controversy was not                                                                             
extinguished when Victor Himes died, and Frances Himes may proceed with a                                                                             
Motion to Vacate the Decree of Dissolution.                                                                                                           
                                                                                                                                                      
The Court of Appeals reversed the trial court, holding that it "must adhere                                                                           
to the ruling in the seminal case of Dwyer v. Nolan, and its progeny."                                                                                
The United States Supreme Court, however, has held that a divorce decree                                                                              
pending appeal does not abate upon the death of a party when property                                                                                 
rights are involved.  In Bell v. Bell,49 the husband obtained a divorce                                                                               
decree in Pennsylvania by falsely stating he was a resident of that state.                                                                            
The wife brought a petition for divorce and alimony in the Supreme Court of                                                                           
New York where she resided, asserting that the Pennsylvania court did not                                                                             
have jurisdiction to grant her husband a divorce.  The New York Court of                                                                              
Appeals upheld the decision of the New York Supreme Court that the                                                                                    
Pennsylvania court lacked jurisdiction, and granted the wife's action for                                                                             
divorce and alimony.  The husband obtained review by the United States                                                                                
Supreme Court, but died before its decision was announced.  The Supreme                                                                               
Court affirmed the ruling of the New York Court of Appeals, stating that                                                                              
the judgment was not only for divorce but was for a large sum of alimony:                                                                             
     The wife's rights to such alimony and costs, though depending on the                                                                             
same grounds as the divorce, are not impaired by the husband's death,                                                                                 
should not be affected by the delay in entering judgment here while this                                                                              
court has held the case under advisement, and may be preserved by entering                                                                            
judgment nunc pro tunc as of the day when it was argued.                                                                                              
                                                                                                                                                      
It is true that this Court has long held that a dissolution action abates                                                                             
upon the death of one of the parties unless the rights of third parties are                                                                           
involved in the dissolution.   We have rejected the general rule followed                                                                             
in virtually all other jurisdictions that during the time an appeal is                                                                                
pending or during the time when an appeal may be taken, a divorce or                                                                                  
dissolution action abates with respect to marital status of the parties but                                                                           
does not abate with respect to property interests affected by the decree.50                                                                           
As this Court observed in Osborne, "{i}t may be that this rule {established                                                                           
in Dwyer} is harsh and is more restrictive than the rule in other                                                                                     
jurisdictions."51   We believe the facts in this case justify our                                                                                     
reconsideration of the rule in Dwyer on equitable grounds.                                                                                            
Admissibility of Evidence Under                                                                                                                       
"Transaction with Deceased Person" Statute                                                                                                            
                                                                                                                                                      
Under RCW 5.60.030,52 the "transaction with deceased person" statute,                                                                                 
sometimes referred to as the "dead man's statute,"53 as a party in interest,54                                                                        
Petitioner Frances A. Himes is precluded from testifying on her own behalf                                                                            
about any transactions55 or conversations with Victor P. Himes, the                                                                                   
deceased.  In vacating the dissolution decree for fraud, the trial court                                                                              
considered the following evidence offered by Petitioner Frances A. Himes,                                                                             
finding the evidence was not precluded by the statute:                                                                                                
a.  Wife #1 has had the same permanent address and residence for 21 years.                                                                            
                                                                                                                                                      
b.  Wife #1 remained a medical dependent with the Navy until 1994, and the                                                                            
Navy knew her address.                                                                                                                                
                                                                                                                                                      
c.  Husband's sister, who has been Wife #1's neighbor for 23 years, was not                                                                           
contacted by Husband in an attempt to locate Wife #1.                                                                                                 
                                                                                                                                                      
d.  Husband and Wife #1's daughter, who was in contact with both parents,                                                                             
was never asked by Husband about Wife #1's whereabouts.                                                                                               
                                                                                                                                                      
e.  Wife #1's residence address is the same address Husband put in his Navy                                                                           
transfer request in 1973.                                                                                                                             
                                                                                                                                                      
Respondent argues that the only admissible evidence offered by Petitioner                                                                             
is Victor P. Himes' transfer request to the Navy which, standing alone, has                                                                           
no probative value and is irrelevant.  Respondent asserts that all other                                                                              
evidence offered by Petitioner is prohibited by RCW 5.60.030, the                                                                                     
transaction with deceased person statute, because if Victor P. Himes were                                                                             
living he could contradict the evidence.56  Respondent contends the "purpose                                                                          
of the statute is to prevent interested parties from giving self-serving                                                                              
testimony regarding conversations or transactions with a decedent."57                                                                                 
Citing Hampton v. Gilleland,58 Respondent asserts that the statute precludes                                                                          
the third-party declarations of Ms. Robyn E. Himes and Ms. Keitha Hetrick.                                                                            
According to Respondent, this Court determined that the transaction with                                                                              
deceased persons statute precludes testimonial evidence offered by a party                                                                            
in interest even though the person testifying is merely a witness and not                                                                             
an interested party.  In Hampton, the father deeded land to his seven                                                                                 
children.  Upon his death, the children filed a partition action.  One                                                                                
daughter resisted the partition, asserting that the father promised her all                                                                           
the land in return for caring and providing for him.  She called as a                                                                                 
witness her brother, who was one of the grantees and therefore an adverse                                                                             
party.  The trial court excluded his testimony under RCW 5.60.030 and this                                                                            
Court upheld the decision, ruling that "if the evidence offered describes                                                                             
transactions with, or relates statements made by, the deceased grantor to                                                                             
the witness, or in the latters' presence, such evidence was properly                                                                                  
excluded provided it was offered by one whose interest or claims were                                                                                 
adverse to the decedent, or, we should add, to persons claiming under the                                                                             
decedent's deed. "59                                                                                                                                  
Petitioner distinguishes Hampton because the witness was a party in                                                                                   
interest.  She argues that RCW 5.60.030 precludes only the testimony of                                                                               
parties in interest about a transaction with decedent and therefore the                                                                               
trial court properly admitted the declarations of Ms. Robyn E. Himes and                                                                              
Ms. Keitha Hetrick, third parties who are not parties in interest, citing                                                                             
Tegland,  5A Washington Practice, Evidence, sec.213:60                                                                                                
. . . {RCW 5.60.030} bars testimony by a 'party in interest or to the                                                                                 
record' about a  transaction  with  the deceased. . . .the courts . . .                                                                               
have held that the statute bars only the testimony of an interested party.                                                                            
                                                                                                                                                      
In general, a witness is considered an interested party (1) if the witness                                                                            
stands to either gain or lose as a direct result of the judgment, or (2) if                                                                           
the record may be used as evidence against the witness in some other                                                                                  
action.  The witness will be considered interested only if a witness's                                                                                
interest is present, certain, and vested.  An interest that is uncertain,                                                                             
remote or contingent is insufficient to bar the witness's testimony.                                                                                  
                                                                                                                                                      
The trial court properly determined the transaction with deceased person                                                                              
statute does not preclude the declarations of Ms. Robyn E. Himes and Ms.                                                                              
Keitha Hetrick.61  The record supports the trial court's finding that                                                                                 
Petitioner Frances A. Himes had the same address for 21 years, the address                                                                            
which Victor P. Himes noted on his Navy transfer request in 1973, and                                                                                 
Frances A. Himes remained a Navy dependent until 1994 when the Navy                                                                                   
contacted her at that address.  There was sufficient evidence upon which                                                                              
the trial court could conclude that Victor P. Himes fraudulently obtained                                                                             
the 1987 default dissolution decree by filing a false affidavit of service.                                                                           
                                                                                                                                                      
Denial of Constitutional Right to Due Process                                                                                                         
Petitioner argues that she has been denied constitutional due process                                                                                 
guaranteed by the Fourteenth Amendment62 because she did not receive notice                                                                           
of nor have an opportunity to respond to the 1987 dissolution and has                                                                                 
consequently been deprived of surviving spouse benefits from the Navy.  She                                                                           
argues the service by publication in this case was invalid because Victor                                                                             
P. Himes filed a false affidavit and the trial court therefore did not have                                                                           
jurisdiction of the parties.  Petitioner asserts that the judgment is void                                                                            
for lack of jurisdiction63 and a motion to vacate the decree could therefore                                                                          
be brought at any time.64                                                                                                                             
Petitioner asserts that both the trial court65 and the Court of Appeals                                                                               
erred in concluding the decree was voidable and not void.  Citing Wenatchee                                                                           
Reclamation Dist. v. Mustell,66 which relied on Mullane v. Central Hanover                                                                            
Bank & Trust Co.,67 Petitioner contends that regardless whether the trial                                                                             
court had in rem or in personam jurisdiction, the service by publication                                                                              
was invalid because Victor P. Himes knew the New Bethlehem, Pennsylvania                                                                              
home address at which she had been living for 21 years and made no effort                                                                             
to serve her there.  In Wenatchee, this Court observed that prior to                                                                                  
Mullane, due process rights tended to vary depending on whether an action                                                                             
was in rem or in  personam:                                                                                                                           
Personal service was considered essential when a state court based its                                                                                
jurisdiction upon its authority over a defendant's person; constructive                                                                               
notice to nonresidents satisfied the requirements of due process when                                                                                 
jurisdiction was based upon the court's authority over property within its                                                                            
territory. . . . The Mullane Court, however, rejected this distinction                                                                                
between in rem and in personam actions for purposes of determining the                                                                                
sufficiency of notice, stating 'we think that the requirements of the                                                                                 
Fourteenth Amendment . . . do no depend upon a classification for which the                                                                           
standards are so elusive. . .' 339 U.S. at 312.                                                                                                       
                                                                                                                                                      
In subsequent cases, the Supreme Court has adhered to the principle                                                                                   
announced in Mullane. . . . Notice by publication and posting is                                                                                      
constitutionally inadequate where the name and address of the owner are                                                                               
known or can be discovered . . . with minimal effort; personal service or                                                                             
mailed notice is required.                                                                                                                            
                                                                                                                                                      
Petitioner concludes that because the judgment is void, "the trial court                                                                              
has a nondiscretionary duty to grant relief"68 by vacating the judgment                                                                               
under CR 60(b)(5) and thus the judgment has no effect and the "rights of                                                                              
the parties are left as though the judgment had never been entered."69                                                                                
Respondent argues that the judgment is voidable and not void because the                                                                              
trial court had in rem jurisdiction to grant the dissolution based on                                                                                 
proper service by publication.  Respondent contends that Petitioner's due                                                                             
process argument "embellishes" the distinction between void and voidable                                                                              
with "constitutional import."  According to Respondent, principles of                                                                                 
equity, and not constitutional law, determine whether a judgment is void or                                                                           
voidable.70                                                                                                                                           
Respondent asserts that the Court of Appeals correctly concluded that                                                                                 
"{t}he decree obtained is thus voidable, not void as Frances contends.                                                                                
This voidable status of the decree results in abatement on the death of one                                                                           
of the parties as is the case here.  This result preserves the validity of                                                                            
Victor's second marriage, an important policy under Washington law."                                                                                  
Respondent contends that the decision of the Court of Appeals recognizes a                                                                            
strong public interest in maintaining the finality and integrity of                                                                                   
dissolution decrees to protect interests of reliance on the judgment.                                                                                 
Respondent cautions that allowing courts to vacate decrees after the death                                                                            
of one of the parties would open a "Pandora's box" of vacated judgments.                                                                              
Relying on In re Marriage of Johnston,71the Court of Appeals in this case                                                                             
held that "{d}espite Victor's false affidavit, the family court had in rem                                                                            
jurisdiction to dissolve the marriage."  In Johnston, the husband had moved                                                                           
to an unknown location in another state. The wife published a summons in                                                                              
the newspaper and obtained a default decree of dissolution and an order of                                                                            
child support.  The court determined the notice by publication was                                                                                    
sufficient compliance with RCW 4.28.100 for a dissolution decree because it                                                                           
concerned in rem action affecting the status of the marital relationship,                                                                             
but not sufficient where additional relief is sought requiring in personam                                                                            
jurisdiction, such as support.   There was no false affidavit in Johnston.                                                                            
In this case Victor P. Himes filed a false                                                                                                            
affidavit which did not comply with the service by publication statute, RCW                                                                           
4.28.100.  "Notice by publication and posting is constitutionally                                                                                     
inadequate where the name and address . . . are known or can be discovered                                                                            
. . . with minimal effort; personal service or mailed notice is required."72                                                                          
                                                                                                                                                      
Equitable Interest of Surviving Putative Spouse                                                                                                       
                                                                                                                                                      
       Respondent Janana McIntyre-Himes in good faith and without complete                                                                            
knowledge entered into a marriage with Victor P. Himes more than 5 years                                                                              
after the purported dissolution which we now determine was invalid.   Under                                                                           
the facts of this case she is the surviving "putative" wife of the deceased                                                                           
Victor P. Himes and Petitioner Frances A. Himes is the surviving "legal"                                                                              
wife.   In overruling Dwyer, however, we do not intend to deny relief to a                                                                            
surviving putative spouse without recognizing the inherent power of the                                                                               
court to balance the equitable interests of a putative wife and a legal                                                                               
wife both of whom are innocent parties in this case.                                                                                                  
       This court has previously ruled a putative wife has equitable                                                                                  
interests in the common property acquired during an illegal marriage.73   In                                                                          
Brenchley Elizabeth Brenchley married Richard Brenchley three weeks after                                                                             
he divorced his first wife.    The law at that time prohibited remarriage                                                                             
within six months of a divorce.74  The new wife was not aware her marriage                                                                            
was void because it was entered too soon after her husband's divorce.   The                                                                           
Brenchleys lived together as husband and wife for 26 years.   During that                                                                             
time, the wife helped run a boarding house, and also worked other jobs to                                                                             
help make payments on properties acquired by her and her husband.75                                                                                   
       All of the property stood in Mr. Brenchley's name at the time of his                                                                           
death.    The sons from his first marriage after their father's death                                                                                 
sought to claim all of his property.   The probate court recognized the                                                                               
invalidity of his marriage to Mrs. Elizabeth Brenchley, but nevertheless                                                                              
awarded one-half of the property to her because all of it had been acquired                                                                           
during her putative marriage to Richard Brenchley.   This Court upheld the                                                                            
award on equitable grounds because Mrs. Elizabeth Brenchley was an innocent                                                                           
party and had an equitable interest in one-half of the property acquired                                                                              
during the invalid marriage.76                                                                                                                        
       The common law equitable principles applied in Brenchley are                                                                                   
mirrored in several restatements of the law.    The Restatement (Second) of                                                                           
Conflict of Laws sec. 74 (1971) provides that "{a} person may be precluded                                                                            
from attacking the validity of a foreign divorce decree if, under the                                                                                 
circumstances, it would be inequitable for him to do so."   Comment b to                                                                              
the rule states, "{s}uch inequity may exist when action has been taken in                                                                             
reliance on the divorce or expectations are based on it . . . ."   This                                                                               
comment supports protection by a court of the interests of a surviving                                                                                
putative spouse.                                                                                                                                      
       The Restatement (Second) of Judgments sec. 68 (1982), entitled                                                                                 
"Fraud, Mistake, and Other Grounds for Relief from Default Judgment,"                                                                                 
states:                                                                                                                                               
       Subject to the limitations stated in sec. 74, a judgment by default                                                                            
may be avoided if the judgment:                                                                                                                       
                                                                                                                                                      
       . . .                                                                                                                                          
                                                                                                                                                      
       (2) Was based on a claim that the party obtaining the judgment knew                                                                            
to be fraudulent{.}                                                                                                                                   
                                                                                                                                                      
This quoted section is applicable to the facts of this case.   Mr. Himes                                                                              
obtained a default dissolution decree by fraudulently stating he had made                                                                             
efforts to, but could not, locate his wife.   This fraudulent claim is a                                                                              
ground for attacking the dissolution decree under sec.sec. 68 and 74 of the                                                                           
Restatement.   We adopt Restatement (Second) of Judgments sec.sec. 68 and                                                                             
74 under the facts of this case.                                                                                                                      
       Subsection (3) of sec. 74 presents the determinative rule for this                                                                             
case:  When a trial court finds cause to vacate a decree of divorce or                                                                                
dissolution, the court must determine whether an interest of reliance upon                                                                            
that decree, such as a surviving putative spouse's interest, should be                                                                                
protected.   If the putative spouse has valid interests, such as rights to                                                                            
property jointly accumulated during the putative marriage, then the trial                                                                             
court must shape and balance the relief to protect the interests of both                                                                              
the putative spouse and the legal spouse.                                                                                                             
       Because there were minimal assets in Mr. Himes' estate, there is no                                                                            
need to remand for a factual inquiry into Respondent MacIntyre-Himes'                                                                                 
equitable property interests.   The record mentions no assets which were                                                                              
jointly acquired by decedent and Respondent MacIntyre-Himes during their 13-                                                                          
month marriage.   Mr. Hime's enrollment in the United States Navy survivor                                                                            
benefit plan occurred prior to his marriage to Respondent MacIntyre-Himes.                                                                            
Because the only asset in the estate is this benefit plan, and because                                                                                
Respondent MacIntyre-Himes has demonstrated no equitable interest in the                                                                              
benefit plan payments, Petitioner Francis A. Himes, as the surviving legal                                                                            
wife of Victor P. Himes, is entitled under federal law to the Navy survivor                                                                           
benefit plan payments.                                                                                                                                
                                                                                                                                                      
SUMMARY AND CONCLUSIONS                                                                                                                               

Since Dwyer v. Nolan, decided in 1905, Washington courts have almost                                                                                  
slavishly adhered to the rule that unless a dissolution decree involves a                                                                             
third party, the action abates upon the death of one of the parties.   In                                                                             
that case the Court reasoned that "an action for divorce is a purely                                                                                  
personal action" and "{n}othing is sought to be affected but the marital                                                                              
status of the husband and wife."77                                                                                                                    
In this case, the dissolution decree affects Petitioner Frances A. Himes'                                                                             
entitlement to surviving spouse benefits from the Navy, a substantial                                                                                 
property interest.  The Himeses were married in 1960, reared their two                                                                                
children, and Victor P. Himes served in the United States Navy during most                                                                            
of the time of their marriage.  Separated from Petitioner since 1982, Mr.                                                                             
Himes retired from the Navy in 1984, obtained a default dissolution decree                                                                            
in 1987, married Respondent Janana MacIntyre-Himes in 1993, and died in                                                                               
1994.  Petitioner Frances A. Himes was unaware of the 1987 dissolution                                                                                
decree until March 1994 when the Navy informed her it had terminated her                                                                              
medical insurance.  She had remained a Navy dependent until that time.  She                                                                           
filed a motion to vacate the default decree in December 1994 within a                                                                                 
reasonable time after she learned of the 1987 Snohomish County Superior                                                                               
Court dissolution.                                                                                                                                    
The Navy determined that, as the surviving spouse, Respondent Janana                                                                                  
MacIntyre-Himes, who was married to Victor P. Himes on July 31, 1994, was                                                                             
entitled to the annuity benefits under the survivor benefit plan arising                                                                              
out of Victor P. Himes' 30 years of service in the Navy.   Respondent was                                                                             
married to him for a year prior to his death on August 14, 1994, the                                                                                  
minimum eligibility time for surviving spouse benefits under federal law.                                                                             
There were no children born of their marriage.                                                                                                        
Petitioner Frances A. Himes and Victor P. Himes were married on October 1,                                                                            
1960.  Petitioner was unquestionably married to Mr. Himes for 22 years;                                                                               
ostensibly married to him for 27 years; and arguably married to him for 34                                                                            
years until the date of his death in 1994.                                                                                                            
Petitioner presented evidence that Victor P. Himes obtained the dissolution                                                                           
by filing a false affidavit of service by publication in the Snohomish                                                                                
County Superior Court.  RCW 5.60.030, the transaction with deceased person                                                                            
statute, does not preclude testimony by third parties who are not parties                                                                             
in interest.78   In vacating the default decree for fraud, the trial court                                                                            
properly considered the evidence from third parties.                                                                                                  
Victor P. Himes filed a false affidavit for service by publication in his                                                                             
dissolution action in 1987.   Under CR 60(b)(4), the court may vacate the                                                                             
dissolution for fraud, misrepresentation, or misconduct.   Additionally,                                                                              
"an elementary and fundamental requirement of due process in any proceeding                                                                           
which is to be accorded finality is notice reasonably calculated, under all                                                                           
the circumstances, to apprise interested parties of the pendency of the                                                                               
action and afford them an opportunity to present their objections."79 Victor                                                                          
P. Himes at all times knew Petitioner Frances A. Himes' address.   His                                                                                
purported service by publication, based upon the false claim he did not                                                                               
know his wife's whereabouts and could not with diligence locate her, was                                                                              
invalid.80  Consequently, the court did not have jurisdiction over the                                                                                
parties and the default decree entered in the Snohomish County Superior                                                                               
Court on December 21, 1987 is void.81                                                                                                                 
We overrule the 1905 decision in Dwyer v. Nolan which established the                                                                                 
principle that death of one party to a divorce or dissolution proceeding                                                                              
eliminates the subject matter of the action, and reverse the Court of                                                                                 
Appeals which reversed the decision of the Snohomish County Superior Court                                                                            
granting Petitioner Frances A. Himes' motion to vacate the default                                                                                    
dissolution decree.    We affirm the decision of the trial court.                                                                                     


Footnotes

   1 Clerk's Papers at 64.                                                                                                                            
   2 Clerk's Papers at 57-59.                                                                                                                         
   3 Clerk's Papers at 66-67.                                                                                                                         
   4 Clerk's Papers at 58-59.                                                                                                                         
   5 Clerk's Papers at 24 and 59.                                                                                                                     
   6 Clerk's Papers at 24 and 61.                                                                                                                     
   7 RCW 4.28.100 Service of summons by publication When authorized.   When                                                                           
the defendant cannot be found within the state, and upon the filing of an                                                                             
affidavit of the plaintiff, his agent, or attorney, with the clerk of the                                                                             
court, stating that he believes that the defendant is not a resident of the                                                                           
state, or cannot be found therein, and that he had deposited a copy of the                                                                            
summons (substantially in the form prescribed in RCW 4.28.110) and                                                                                    
complaint in the post office, directed to the defendant at his place of                                                                               
residence, unless it is stated in the affidavit that such residence is not                                                                            
known to the affiant, and stating the existence of one of the cases                                                                                   
hereinafter specified, the service may be made by publication of the                                                                                  
summons, by the plaintiff or his attorney in any of the following cases:                                                                              
                                                                                                                                                      
   . . . .                                                                                                                                            
                                                                                                                                                      
   (4) When the action is for divorce in the cases prescribed by law;                                                                                 
                                                                                                                                                      
   . . . .                                                                                                                                            
   8 Clerk's Papers at 122.                                                                                                                           
   9 Clerk's Papers at 31-36, Decree for Dissolution of Marriage.                                                                                     
   10 Clerk's Papers at 28, Declaration of Janana MacIntyre-Himes at 1.                                                                               
   11 Clerk's Papers at 37.                                                                                                                           
   12 Clerk's Papers at 41.                                                                                                                           
   13 Clerk's Papers at 39.                                                                                                                           
   14 Clerk's Papers at 193, Deposition of Janana MacIntyre-Himes at 38.                                                                              
   15 Clerk's Papers at 89, Order Vacating Decree of Dissolution at 3.                                                                                
   16 Clerk's Papers at 157.                                                                                                                          
   17 RULE 60.  RELIEF FROM JUDGMENT OR ORDER                                                                                                         
                                                                                                                                                      
   . . . .                                                                                                                                            
                                                                                                                                                      
   (b)  Mistakes; Inadvertence; Excusable Neglect; Newly Discovered                                                                                   
Evidence; Fraud; etc.  On motion and upon such terms  as are just, the                                                                                
court may relieve a party or his legal representative from a final                                                                                    
judgment, order, or proceeding for the following reasons:                                                                                             
   . . . .                                                                                                                                            
                                                                                                                                                      
   (4) Fraud (whether heretofore denominated intrinsic or extrinsic),                                                                                 
misrepresentation, or other misconduct of an adverse party;                                                                                           
                                                                                                                                                      
   (5)  The judgment is void;                                                                                                                         
                                                                                                                                                      
   (7)  If the defendant was served by publication, relief may be granted                                                                             
as prescribed in RCW 4.28.200;                                                                                                                        
                                                                                                                                                      
   (11)  Any other reason justifying relief from the operation of the                                                                                 
judgment.                                                                                                                                             
                                                                                                                                                      
   The motion shall be made within a reasonable time and for reasons (1),                                                                             
(2) or (3) not more than 1 year after the judgment, order, or proceeding                                                                              
was entered or taken.                                                                                                                                 
   18 See Black's Law Dictionary, 661, (6th ed. 1990) ("Extrinsic fraud.                                                                              
Fraud which is collateral to the issues tried in the case where the                                                                                   
judgment is rendered.  Type of deceit which may form basis for setting                                                                                
aside a judgment as for example a divorce granted ex parte because the                                                                                
plaintiff-spouse falsely tells the court he or she is ignorant of the                                                                                 
whereabouts of the defendant spouse.").                                                                                                               
   19 Clerk's Papers at 75, Respondent's Motion to Vacate Decree at 5.                                                                                
   20 Clerk's Papers at 26 -27.                                                                                                                       
   21 Clerk's Papers at 55-56.                                                                                                                        
   22 Clerk's Papers at 22.                                                                                                                           
   23 Clerk's Papers at 95.                                                                                                                           
   24 Clerk's Papers at 4.                                                                                                                            
   25 Clerk's Papers at 82.                                                                                                                           
   26 Clerk's Papers at 94.                                                                                                                           
   27 Clerk's Papers at 87-92.                                                                                                                        
   28 Clerk's Papers at 126.                                                                                                                          
   29 Clerk's Papers at 188.                                                                                                                          
   30 Clerk's Papers at 202.                                                                                                                          
   31 Petition for Review.                                                                                                                            
   32 40 Wash. 459, 460-61, 82 P. 746 (1905); Crockett v. Crockett, 27 Wn.2d                                                                          
877, 892 181 P.2d 180 (1947); Osborne v. Osborne, 60 Wn.2d 163, 166, 372                                                                              
P.2d 538 (1962).                                                                                                                                      
   33 Cf. In re Marriage of Johnston, 33 Wn.App. 178, 179, 653 P.2d 1329                                                                              
(1982).                                                                                                                                               
   34 See Francis M. Dougherty, Annotation, Effect of Death of Party to                                                                               
Divorce Proceeding Pending Appeal or Time Allowed for Appeal, 33 A.L.R.4th                                                                            
51 (1984) ("Washington has rejected the traditional rule followed in                                                                                  
virtually all of the other jurisdictions, and has developed the view that                                                                             
an appeal from a divorce proceeding abates upon the death of one of the                                                                               
parties unless the rights of third persons are adversely affected by the                                                                              
divorce decree.").                                                                                                                                    
   35 40 Wash. 459, 82 P. 746 (1905).  See also Crockett v. Crockett, 27                                                                              
Wn.2d 877, 181 P.2d 180 (1947).                                                                                                                       
   36 40 Wash. at 460-61.                                                                                                                             
   37 60 Wn.2d 163, 166, 372 P.2d 538 (1962).                                                                                                         
   38 See Francis M. Dougherty, Annotation, Effect of Death of Party to                                                                               
Divorce Proceeding Pending Appeal or Time Allowed for Appeal, 33 A.L.R.4th                                                                            
47 (1984); Annotation, Vacating or Setting Aside Divorce Decree for                                                                                   
Remarriage of Party, 17 A.L.R.4th 1153 (1982); Gregory G. Sarno,                                                                                      
Annotation, Estoppel or Laches Precluding Lawful Spouse from Asserting                                                                                
Rights in Decedent's Estate as Against Putative Spouse, 81 A.L.R.3d 110                                                                               
(1977).                                                                                                                                               
   39 190 Md. 79, 57 A.2d 276, 279 (1948).                                                                                                            
   40 See also Dierkes v. Dierkes, 268 S.E.2d 142 (W. Va.App. 1980) ("The                                                                             
decree in question here was void because the court lacked jurisdiction due                                                                            
to insufficient service of process and a void judgment or decree is a mere                                                                            
nullity and may be attacked at any time."); Lindley v. Lindley, 150 So. 2d                                                                            
746 (Ala. 1963) (death of a spouse who has fraudulently obtained a divorce                                                                            
does not deprive a court of power to set aside such divorce); Sousa v.                                                                                
Freitas, 10 Cal. App. 3d 660, 89 Cal. Rptr. 485 (1970) ("A judgment is                                                                                
properly challenged in equity when it is claimed to have been rendered                                                                                
without legal service of process or legal notice to a defendant.").                                                                                   
   41 See also Gregory G. Sarno, Annotation., Estoppel or Laches Precluding                                                                           
Lawful Spouse from Asserting Rights in Decedents's Estate as Against                                                                                  
Putative Spouse, 81 A.L.R.3d 110, 117 ("The judiciary has taken a flexible                                                                            
and fact-oriented approach to the questions of estoppel and laches in the                                                                             
context of multiple spousal claimants in heirship proceedings.").                                                                                     
   42 Dwyer v. Nolan, 40 Wash. 459, 460-61, 82 P. 746 (1905).                                                                                         
   43 200 Wash. 365, 368, 93 P.2d 428 (1939).  See also Dougherty v.                                                                                  
Dougherty, 24 Wn.2d 811, 818, 167 P.2d 467 (1946) (the interlocutory order                                                                            
became a nullity in its entirety upon the death of one of the parties and                                                                             
the divorce action abated).                                                                                                                           
                                                                                                                                                      
   44 200 Wash at 370.                                                                                                                                
   45 200 Wash at 372.                                                                                                                                
   46 27 Wn.2d 877, 892, 181 P.2d 180 (1947).                                                                                                         
   47 sec.74.  Denial or Limitation of Relief                                                                                                         
                                                                                                                                                      
   Except with regard to judgments referred to in sec.sec. 65-66 and 69,                                                                              
relief from a judgment will be denied if:                                                                                                             
                                                                                                                                                      
   (1) The person seeking relief failed to exercise reasonable diligence in                                                                           
discovering the ground for relief, or after such discovery was unreasonably                                                                           
dilatory in seeking relief; or                                                                                                                        
                                                                                                                                                      
   (2) The application for relief is barred by lapse of time; or                                                                                      
                                                                                                                                                      
   (3) Granting the relief will inequitably disturb an interest of reliance                                                                           
on the judgment.  When such an interest can be adequately protected by                                                                                
giving the applicant limited or conditional relief, the relief will be                                                                                
shaped accordingly.                                                                                                                                   
   48  60 Wn.2d 163.                                                                                                                                  
   49 181 U.S. 175, 178-79, 21 S. Ct. 551, 45 L. Ed. 804 (1901).                                                                                      
   50  See 33 A.L.R.4th 50-58.                                                                                                                        
   51 60 Wn.2d at 166.                                                                                                                                
   52 RCW 5.60.030  Not excluded on grounds of interest Exception                                                                                     
Transaction with person since deceased.  No person offered as a witness                                                                               
shall be excluded from giving evidence by reason of his or her interest in                                                                            
the event of the action, as a party thereto or otherwise, but such interest                                                                           
may be shown to affect his or her credibility:  PROVIDED HOWEVER, That in                                                                             
any action or proceeding where the adverse party sues or defends as                                                                                   
executor, administrator or legal representative of any deceased person, or                                                                            
as deriving right or title by, through or from any deceased person . . .                                                                              
then a party in interest or to the record, shall not be admitted to testify                                                                           
in his or her own behalf as to transaction had by him or her with, or any                                                                             
statement made to him or her, or in his or her presence, by any such                                                                                  
deceased, incompent or disabled person, or by any such minor under the age                                                                            
of fourteen years:  PROVIDED FURTHER, That this exclusion shall not apply                                                                             
to parties of record who sue or defend in a representative or fiduciary                                                                               
capacity, and have no other or further interest in the action.                                                                                        
   53 See O'Connor v. Slatter, 48 Wash. 493, 495, 93 P.1078 (1908) ("Death                                                                            
has sealed the lips of one of the parties and the statute imposes the same                                                                            
silence upon the other.")                                                                                                                             
   54 See Bentzen v. Demmons, 68 Wn.App. 339, 344, 842 P.2d 1015 (1993) ("A                                                                           
person is a party in interest . . . when {the person} stands to gain or                                                                               
lose in the action in question.").                                                                                                                    
   55 See In re Estate of Shaughnessy, 97 Wn.2d 652, 656, 648 P.2d 427                                                                                
(1982) ({T}he test of a transaction with a decedent is whether the                                                                                    
decedent, if living, could contradict the witnesss of his own knowledge.  A                                                                           
transaction is the "doing or performing of some business . . . or the                                                                                 
management of any affair.").                                                                                                                          
   56 See Vogt v. Hovander, 27 Wn.App. 168, 616 P.2d 660 (1979); Thor v.                                                                              
McDearmid, 63 Wn.App. 193, 817 P.2d 1380 (1991).                                                                                                      
   57 McGugart v. Brumback, 77 Wn.2d 441,444-45, 463 P.2d 140 (1969).                                                                                 
   58 61 Wn.2d 537, 379 P.2d 194 (1963).                                                                                                              
   59 Id.at 542.                                                                                                                                      
   60 See also Jacobs v. Brock, 73 Wn.2d 234, 238, 437 P.2d 920 (1968)                                                                                
(statements made by the deceased to third parties are not barred by the                                                                               
statute); People's National Bank v. National Bank of Commerce, 69 Wn.2d                                                                               
682, 690, 420 P.2d 208 (1969) (proof of transactions with third parties are                                                                           
not barred by the statute).                                                                                                                           
   61 See Erickson v. Kerr, 125 Wn.2d 183, 188-89, 883 P.2d 313 (1994)                                                                                
(Testimony by third parties is not excluded under the statute; only parties                                                                           
in interest are precluded from testifying on their own behalf.).                                                                                      
   62 Amendment XIV  Section 1.  All persons born or naturalized in the                                                                               
United States, and subject to the jurisdiction thereof, are citizens of the                                                                           
United States and of the State wherein they reside.  No State shall make or                                                                           
enforce any law which shall abridge the privileges or immunities of                                                                                   
citizens of the United States; nor shall any State deprive any person of                                                                              
life, liberty, or property, without due process of law; nor deny to any                                                                               
person within its jurisdiction the equal protection of the laws.                                                                                      
   63 Marley v. Department of Labor and Industries, 125 Wn.2d 533, 541, 886                                                                           
P.2d 189 (1994).                                                                                                                                      
   64 See In Re Marriage of Leslie, 112 Wn.2d 612, 619, 772 P.2d 1013 (1989)                                                                          
(motions to vacate on grounds that the judgment is void may be brought at                                                                             
any time after entry of judgment).                                                                                                                    
   65 The trial court stated that "a judgment is void if the rendering court                                                                          
lacked jurisdiction over the parties, or over the subject matter, or if due                                                                           
process requirements were not fulfilled."  The court ruled that "the facts                                                                            
do not support a finding of lack of jurisdiction, and Wife #1 does not                                                                                
allege a violation of due process rights.  Therefore, the court shall not                                                                             
consider revising the Commissioner's ruling based on CR 60(b)(5)."                                                                                    
   66 102 Wn.2d 721, 725-26, 684 P.2d 1275 (1984).                                                                                                    
   67 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950).                                                                                              
   68 Kennedy v. Sundown Speed Marine, Inc., 97 Wn.2d 544, 549, 647 P.2d 30,                                                                          
cert. denied, 459 U.S. 1037 (1982).                                                                                                                   
   69 112 Wn.2d at 618.                                                                                                                               
   70 Restatement of the Law 2d, Judgments 2d, sec.74, cmt. a.                                                                                        
   71 33 Wn.App. 178, 179, 653 P.2d 1329 (1982).                                                                                                      
   72 102 Wn.2d at 726.                                                                                                                               
   73 In re Estate of Brenchley, 96 Wash. 223, 164 P. 913, 1917E L.R.A. 968                                                                              
(1917).                                                                                                                                               
   74 Id. at 224.                                                                                                                                        
   75 Id. at 225-26.                                                                                                                                     
   76 Id. at 226-27.                                                                                                                                     
   77 40 Wash. at 460.                                                                                                                                
   78 125 Wn.2d at 188-89.  See also Tegland, 5A Washington Practice,                                                                                 
Evidence, sec.212 ("{RCW 5.60.030} bars only the testimony of parties in                                                                              
interest and parties to the record.  Other persons may testify on behalf of                                                                           
a party who is prohibited from testifying.").                                                                                                         
   79 339 U.S. at 314.                                                                                                                                
   80 102 Wn.2d at 725.                                                                                                                               
   81 See Marley v. Dept. of Labor and Industries, 125 Wn.2d 533, 539, 886                                                                            
P.2d 189 (1994) (a judgment is void when the court lacks personal or                                                                                  
subject matter jurisdiction).