Vanzant v. Purvis

Deborah Jean VANZANT v. James D. PURVIS

CA 95-738                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered August 21, 1996


1.   Civil procedure -- service upon attorney. -- Whenever, under
     Ark. R. Civ. P. 5 or any statute, service is required or
     permitted to be made upon a party represented by an attorney,
     the service shall be upon the attorney unless the court orders
     service upon the party himself.

2.   Attorney & client -- attorney employed to represent State in
     paternity and child-support matters does not represent
     assignee of interest. -- Under Ark. Code Ann.  9-14-210(e)(2)
     (Supp. 1995), an attorney employed by the Department of Human
     Services or the Office of Child Support Enforcement in any
     action brought to establish paternity, to secure repayment of
     government benefits paid or assigned child-support arrearages,
     to secure current and future support of children, or to
     establish, enforce, or modify a child-support obligation
     represents the interests of the Department of Human Services
     or the Office of Child Support Enforcement and does not
     represent the assignee of an interest.

3.   Civil procedure -- service -- trial court erred in finding
     that attorney represented appellant -- service of
     counterpetition on attorney not valid. -- Where appellant
     executed a contract with the Child Support Enforcement Unit to
     assign her child-support rights; where the State filed its
     petition for contempt against appellee pursuant to Ark. Code
     Ann.  9-14-210 (Supp. 1995), indicating in the style of the
     case that it was filed on behalf of the State; and where the
     attorney who filed the petition was prohibited by statute from
     representing appellant, the trial courtþs finding that the
     attorney did represent her was erroneous; because the
     appellate court found that the trial court erred in finding
     that appellant was represented by the attorney, it was clear
     that service of a counterpetition on him by appellee was not
     valid service under Ark. R. Civ. P. 5.

4.   Judgment -- proper service required or judgment void -- order
     changing custody of parties' children to appellee was void. --
     A judgment rendered without notice to the parties is void;
     when there has been no proper service and, therefore, no
     personal jurisdiction over the defendant in a case, any
     judgment is void ab initio; thus, the original order changing
     custody of the partiesþ minor children to appellee was void ab
     initio.


     Appeal from Washington Chancery Court; Thomas F. Butt,
Chancellor; reversed and remanded.
     The Legal Clinic, by: Aaron L. Squyres, for appellant.
     Mary E. Green, P.A., for appellee.

     John F. Stroud, Jr., Judge.
     Deborah Vanzant appeals from the trial courtþs denial of her
motion to vacate an order granting James Purvis's petition for a
change of custody of the partiesþ minor children.  She claims that
the trial court erred in finding that she was represented by
counsel and that she had been properly served with notice of the
petition for change of custody.  She also alleges that the trial
court erred in refusing to grant a new trial.  We agree and
reverse.
     On August 3, 1988, the District Court of Harrison County,
Texas, entered a final decree of divorce, granting an absolute
divorce to the parties.  The decree granted custody of the parties'
minor children to the appellant and ordered the appellee to pay
child support in the sum of ninety-five dollars per week.
     As a result of the appellee's failure to pay child support as
ordered pursuant to the parties' final decree of divorce, the
appellant became a recipient of Aid to Families with Dependent
Children (AFDC) benefits and subsequently assigned her support
rights to the State of Arkansas.  On June 16, 1992, an order of
registration was entered by the Chancery Court of Washington
County, Arkansas, registering the divorce decree.  On July 30,
1993, a petition for citation for contempt was filed by the State
of Arkansas, Department of Finance and Administration, Division of
Revenue, ex rel. Deborah Jean Purvis against James D. Purvis,
alleging that Mr. Purvis had failed to pay his child-support
obligation and had incurred an arrearage in the amount of
$18,565.00 as of June 30, 1993.  The State also alleged that he
should be held in contempt of court as a result of his failure to
pay his child-support obligation, and the State should be entitled
to a judgment on the total arrearage including a reasonable
attorney's fee and costs of the filing of the action.
     The petition for citation of contempt was served on the
appellee on September 3, 1993, and he subsequently filed a response
to the petition for citation of contempt and a counterpetition
asking that custody of the parties' minor children be awarded to
him.  A summons on the counterpetition for change in custody was
prepared and filed with the court but was never served upon the
appellant.
     On September 7, 1993, the appellant wrote a letter to the
Office of Child Support Enforcement advising that her case should
be closed "as of today."  She was moving to Colorado and left a
forwarding address of P.O. Box 26235, Colorado Springs, Colorado 
80936.  On September 23, 1993, George Butler, the attorney for the
Arkansas Child Support Enforcement Unit, filed an answer to
counterpetition on behalf of the appellant, denying those material
allegations contained in the appellee's counterpetition for change
in custody.  On September 23, 1993, the attorney for the Child
Support Enforcement Unit sent a letter to the appellant at 741
Morningside Drive #3, Fayetteville, Arkansas 72701, with a copy of
the answer to counterpetition and a letter advising her that she
would need to obtain another attorney to represent her in the
matter of child custody.
     On October 13, 1993, the Chancery Court of Washington County,
Arkansas, entered an order dismissing the petition for citation of
contempt on the appellee's motion.  On October 6, 1993, the
attorney for the Arkansas Child Support Enforcement Unit sent a
letter to the appellant at P.O. Box 26235, Colorado Springs,
Colorado  80936, advising her that a custody hearing had been
scheduled for November 10, 1993, at 10:00 a.m. in the Washington
County Courthouse.  The letter further advised that the Office of
the Child Support Enforcement Unit would not be able to represent
her in the matter and that she would need to obtain private
counsel.  On November 10, 1993, a trial on the merits was held in
the Chancery Court of Washington County, Arkansas, on the
appellee's counterpetition for change in custody.  The appellee
appeared in person and by counsel.  The appellant did not appear
although the attorney for the Arkansas Child Support Enforcement
Unit did appear to make a statement to the court.  He advised the
court that the appellant was not present and in fact had, by letter
dated September 7, 1993, asked his office to close her case.  He
further stated that she had not given him authority to represent
her in this matter although he did file an answer to the
counterclaim.  The court recognized his representation and advocacy
to the extent stated and recognized his reply to the
counterpetition for the change in custody.  The court further
stated that as an individual attorney and as attorney for the Child
Support Enforcement Unit, he did not have authority to represent
Ms. Vanzant on the counterpetition.  Subsequently, evidence and
testimony was taken by the court, the appellee was found to have
presented a prima facie case for change of custody, and the court
granted the appellee custody of the parties' minor children.  The
attorney for the Arkansas Child Support Enforcement Unit offered no
defense, made no cross-examination of any witnesses, and in fact
left the courtroom prior to the completion of testimony.
     On December 13, 1993, the Chancery Court of Washington County,
Arkansas, entered an order and judgment granting judgment in favor
of the Arkansas Child Support Enforcement Unit against the appellee
in the sum of $3,000.00 for past due child support as of November
30, 1993.  The Court further found that this sum did not include
any "non-AFDC" arrears and directed the appellee to pay the sum of
$25.00 per month until paid in full.
     On November 13, 1993, the appellee appeared at appellant's
residence in Colorado Springs, Colorado, and took custody of the
parties' minor children pursuant to the order of the Chancery Court
of Washington County, Arkansas.
     On August 15, 1994, the appellant, acting pro se, filed a
motion for change of custody in the Chancery Court of Washington
County, Arkansas, asking that the custody of the parties' minor
children be awarded to her.  On January 5, 1995, appellant filed a
motion to vacate in the Chancery Court of Washington County,
Arkansas, asking that the order entered on November 10, 1993,
granting custody of the parties' minor children to the appellee be
vacated and a new trial on the merits be set on the appellee's
counterpetition for change in custody. 
     On March 21, 1995, the court denied the motion, finding that
the appellant was represented by George Butler in the former
proceeding regarding modification of custody and that she was not
denied representation before or at the time of the hearing on
November 10, 1993.
     The appellantþs argument on appeal is that the trial court
erred in finding that appelleeþs service of the counterpetition on
George Butler, attorney for the State of Arkansas Child Support
Enforcement Unit, was sufficient.  She argues that the trial
courtþs finding that she was represented by Mr. Butler is incorrect
and that it was error for the trial court to deny her motion to
vacate the order.
     It is undisputed that the appellee served the counterpetition
on Mr. Butler and not on the appellant.  The appellant contends
that she never received notice of the hearing which was held on
November 10, 1993, and that the appellee was required to serve her
personally.  The appellee claims that service on Mr. Butler was
proper under Ark. R. Civ. P. 5(b), which provides:
     Whenever under this rule or any statute, service is
     required or permitted to be made upon a party represented
     by an attorney, the service shall be upon the attorney
     unless the court orders service upon the party himself.

Thus, whether service on Mr. Butler was sufficient depends upon
whether he represented appellant.
     Mr. Butler was the attorney who filed the original petition
for contempt against appellee on behalf of the Arkansas Department
of Finance and Administration.  The scope of his representation is
defined by statute.  Arkansas Code Annotated  9-14-210 provides:
     (d)  The State of Arkansas is the real party in interest
     for purposes of establishing paternity and securing
     repayment of benefits paid and assigned past due support,
     future support, and costs in actions brought to
     establish, modify, or enforce an order of support in any
     of the following circumstances:
     (1)  Whenever aid under  20-76-410 or 20-77-109 is
     provided to a dependent child; or
     (2)  Whenever a contract and assignment for child support
     services has been entered into for the establishment or
     enforcement of a child support obligation for which an
     assignment under  20-76-410 is not in effect; or
     (3)  Whenever duties are imposed on the state pursuant to
     the Uniform Interstate Family Support Act,  9-17-101 et
     seq.
     (e)(1)  In any action brought to establish paternity, to
     secure repayment of government benefits paid or assigned
     child support arrearages, to secure current and future
     support of children, or to establish, enforce, or modify
     a child support obligation, the Department of Human
     Services, the Office of Child Support Enforcement, or
     both, or their contractors, may employ attorneys.
     (2)  An attorney so employed shall represent the
     interests of the Department of Human Services or the
     Office of Child Support Enforcement and does not
     represent the assignee of an interest set out in
     subsection (d) of this section.
     (3)  Representation by the employed attorney shall not be
     construed as creating an attorney-client relationship
     between the attorney and the assignee of an interest set
     forth in subsection (d) of this section, or with any
     party or witness to the action, other than the Department
     of Human Services or the Office of Child Support
     Enforcement, regardless of the name in which the action
     is brought.

(Emphasis added.)

     In this case, the appellant executed a contract with the Child
Support Enforcement Unit to assign her child-support rights.  The
State filed its petition pursuant to the statute indicating in the
style of the case that it was filed on behalf of the State. 
Clearly, Mr. Butler was prohibited, by statute, from representing
the appellant, and the trial courtþs finding that he did represent
her was erroneous.  Because we find that the trial court erred in
finding that the appellant was represented by Mr. Butler, it is
clear that service of the counterpetition on him by appellee was
not valid service under Ark. R. Civ. P. 5.
     A judgment rendered without notice to the parties is void. 
Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994).  When there
has been no proper service and, therefore, no personal jurisdiction
over the defendants in a case, any judgment is void ab initio.  Id. 
Thus, the original order changing custody of the partiesþ minor
children to the appellee was void ab initio.
     Reversed and remanded for action consistent with this opinion.
     Pittman and Rogers, JJ., agree.