Sonia T. McGuire v. Patrick T. McGuire

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CA 04-418

December 15, 2004


[NO. DR-02-812]




Terry Crabtree, Judge

This is a one-brief appeal from the trial court's order denying appellant's motion to set aside a decree of divorce based on defective service. The trial court ruled that service was defective but that laches precluded appellant from attacking the decree. Appellant raises three issues contesting the trial court's decision. We agree with appellant's argument that the decree was void and that laches was not applicable as a defense. Therefore, we reverse and dismiss.

On December 29, 2000, appellee Patrick McGuire obtained a decree of divorce by default from appellant Sonia McGuire. Service on appellant had been attempted by warning order pursuant to Ark. R. Civ. P. 4(f). On September 19, 2002, appellant filed a motion to set aside the divorce decree. Appellant alleged in the motion that she was a citizen of the United States and a resident of Dubai, United Arab Emirates, and that appellee had failed to perfect service upon her by warning order. In an amended motion to set aside the decree, appellant contended, with more specificity, that appellee had failed to file an affidavit stating that thirty days had elapsed since the warning order was first published as required by Ark. R. Civ. P. 4(f)(4).1 Appellee conceded that service was defective but argued that laches barred her from seeking to set aside the decree.

The case was presented to the court on the pleadings. The trial court acknowledged that appellee had failed to file the requisite affidavit but ruled that laches prevented appellant from challenging the decree. With regard to laches, the trial court found that appellant had actual knowledge of the decree by February 27, 2001; that appellee had remarried in reliance on the decree; that appellee and his wife were in the process of adopting a child; and that the adoption would not be approved if their marriage was invalidated. Appellant appeals from the trial court's order setting out these findings and denying her petition to vacate the decree.

Rule 4(f)(4) of the Arkansas Rules of Civil Procedure provides that "[n]o judgment by default shall be taken pursuant to this subsection unless the party seeking judgment or his or her attorney has filed with the court an affidavit stating that 30 days have elapsed since the warning order was first published." It is undisputed that this requirement was not met. The case at bar is much like our decision in Jackson v. Jackson, 81 Ark. App. 249, 100 S.W.3d 92 (2003), which involved a divorce decree entered by default. There, service was also attempted by warning order, and it suffered from the defect that the warning order had been issued without an affidavit stating that a diligent inquiry had been made but that the whereabouts of the defendant remained unknown, as required by Ark. R. Civ. P. 4(f)(1). We held that, absent strict compliance with the rule, the trial court erred in failing to set aside the decree.

In Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001), also a divorce case, the defendant spouse was never served with a copy of the complaint or summons and did not expressly execute a waiver of notice and entry of appearance, nor did the plaintiff spouse file a motion to extend the time for service as permitted under Ark. R. Civ. P. 4(i). Although the defendant spouse participated, to a degree, in the divorce proceedings, the supreme court held that the trial court acquired no jurisdiction over her and that the decree was void. The following principles formed the basis of the court's decision:

Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982) (citing Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 1972), and Southern Kansas Stage Lines Co. v. Holt, 192 Ark. 165, 90 S.W.2d 473 1936)). Moreover, a summons is necessary to satisfy due process requirements. Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996). It is also mandatory under Arkansas law that service of process must be made within 120 days after the filing of the complaint unless there is a motion to extend, and if service is not obtained within the 120-day period and no such motion is made, dismissal is required upon motion or upon the court's own initiative. See Ark. R. Civ. P. 4(i); Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (under Rule 4(i), the trial court's dismissal of the case for failure to make service of summons was mandatory); see also Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990).

Our case law is equally well-settled that statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989), and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 1978)). In Carruth, this court held that the same reasoning applies to service requirements imposed by court rules, and that proceedings conducted where the attempted service was invalid renders judgments arising therefrom void ab initio. The Carruth court, quoting from Tucker v. Johnson, supra, further held that actual knowledge of a proceeding does not validate defective process. Carruth, 324 Ark. at 375. Stated in different terms, the general rule is that a judgment entered without jurisdiction of the person or subject matter or in excess of the court's power is void. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995).

Raymond at 484-85, 36 S.W.3d at 735. The court in Raymond further held that the defense of laches could not be applied to uphold a void decree. The court reasoned that the "attempt to invoke laches as a defense is misplaced because the trial court had no jurisdiction or authority to hear the case in the first place, see Tucker, supra, much less consider such a defense or argument." Id. at 488, 36 S.W.3d at 738.

There is no dispute in this case that the affidavit required under Rule 4(f)(4) was not filed. Therefore, service was not made in strict compliance with the rule. Based on the foregoing authorities, we conclude that the decree was void and that the trial court erred in ruling that laches barred appellant's petition to set aside the decree. Because of our disposition of this issue, we need not address the other arguments raised by appellant in the appeal.

Reversed and dismissed.

Pittman and Roaf, JJ., agree.

1 Appellant also alleged that the warning order was issued without the filing of an affidavit by appellee or his attorney stating that, after diligent inquiry, the whereabouts of appellant were unknown as required by Ark. R. Civ. P. (4)(f)(1). In a supplemental response to the motion to setaside, appellee attached what purports to have been a file-marked copy of such an affidavit dated September 21, 2000. No such file-marked affidavit appears in the certified transcript, and just as the trial court, we express no opinion on the validity of this purported document.