State of Arkansas Office of Child Support Enforcement v. Mitchell

STATE OF ARKANSAS OFFICE OF CHILD SUPPORT
ENFORCEMENT as Assignee of Andrea Kolen v.
Garry MITCHELL

97-51                                              ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 23, 1997


1.   Courts -- rules of decision -- stare decisis. -- The supreme court is
     bound to prior case law under the doctrine of stare decisis;
     the policy behind stare decisis is to lend predictability and
     stability to the law; precedent governs until it gives a
     result so patently wrong, so manifestly unjust, that a break
     becomes unavoidable; the test is whether adherence to the rule
     would result in great injury or injustice.

2.   Process -- substituted service -- strict compliance with rules or statutes
     mandatory. -- Substituted service is a departure from the common
     law, and rules or statutes providing for it are mandatory and
     to be complied with exactly.

3.   Process -- substituted service -- most certain mode of conveying actual
     notice to absent defendant. -- Strict construction of the
     substituted-service rule is the most certain mode of conveying
     actual notice to an absent defendant.

4.   Words & phrases -- "usual place of abode" defined. -- One's usual place
     of abode means the place where a person lives or has his home,
     that is, his fixed permanent home; the place to which he has,
     whenever he is absent, the intention of returning.
5.   Process -- service at appellee's mother's house constituted insufficient
     notice. -- Applying its definition of place of abode, the
     supreme court held that appellee had his usual place of abode
     in a trailer, at which address he lived and paid rent and
     utilities; in light of its holdings that the rule for
     substituted service of process must be complied with exactly,
     and because appellee intended the trailer as his fixed and
     permanent home, the supreme court held that service of process
     at his mother's house was insufficient for the purpose of
     proper notice.

6.   Courts -- rules of decision -- liberal construction of meaning of usual
     place of abode rejected. -- Although the supreme court noted that
     a change in rules to place a liberal construction on the
     meaning of dwelling house or usual place of abode to include
     a "reasonable notice" component might become appropriate in
     the future, it chose to proceed with caution and rejected a
     departure from the settled rule.

7.   Process -- substituted service -- strictly construed rule did not unduly
     burden conscientious plaintiff. -- The supreme court concluded that
     the strictly construed substituted-service rule did not unduly
     burden a conscientious plaintiff.

8.   Process -- service insufficient to give notice -- default judgment void ab
     initio. -- Because service of process was insufficient to give
     notice, the supreme court held that the default judgment
     against appellee was void ab initio.

9.   Constitutional law -- sovereign immunity -- doctrine discussed. -- The
     doctrine of sovereign immunity comes from Article 5, section
     20, of the Arkansas Constitution, which provides that "[t]he
     State of Arkansas shall never be made Defendant in any of her
     courts"; the doctrine of sovereign immunity is rigid, and
     immunity may be waived only in limited circumstances; under
     the doctrine, the State possesses jurisdictional immunity from
     suit; where the suit is one against the State and there has
     been no waiver of immunity, the trial court acquires no
     jurisdiction.

10.  Constitutional law -- sovereign immunity -- exceptions. -- The supreme
     court has recognized exceptions to the doctrine of sovereign
     immunity where an act of the legislature has created a
     specific waiver of immunity and where the State is the moving
     party seeking specific relief.

11.  Constitutional law -- sovereign immunity -- test for determining whether
     suit is one against State. -- Under the test for determining
     whether a suit is one against the State, where the relief
     sought by a decree operates to control the action of the State
     or subjects it to liability, the suit is in effect a suit
     against the State and cannot be maintained without State
     consent. 

12.  Constitutional law -- sovereign immunity -- appellee had claim against
     State. -- The supreme court concluded that appellee, in seeking
     a refund of previously paid child support, had a claim against
     the State and that if appellant agency were ordered to refund
     the monies, the only source of payment would be the State
     Treasury; such a judgment would subject the State to
     liability, making the State a defendant as contemplated by the
     prohibition in Ark. Const. art. 5,  20; as such, the suit was
     one against the State that could not be maintained unless the
     State had waived its immunity defense.

13.  Constitutional law -- sovereign immunity -- not waived when appellant
     agency subjected itself to court's jurisdiction to enforce child support. -
     - The supreme court determined that appellant agency did not
     become a moving party for the purpose of waiver when it
     initiated a paternity and child-support action against
     appellee; pursuant to statutory law, appellant agency was
     obligated to subject itself to the jurisdiction of the court
     to procure and enforce child support for the custodial parent;
     in so doing, it did not voluntarily waive sovereign immunity.

14.  Constitutional law -- sovereign immunity -- doctrine barred appellee's
     claim. -- Where appellee had not sought permission to sue the
     State, and the State had not waived its immunity, the supreme
     court held that the trial court was correct in ruling that
     appellee's claim was barred by the doctrine of sovereign
     immunity.  

15.  Constitutional law -- sovereign immunity -- supreme court did not have
     jurisdiction to order State to refund appellee's child-support payments. -
     - Under the principles of sovereign immunity, the supreme
     court did not have jurisdiction to order the State to refund
     appellee's child-support payments.  


     Appeal from Poinsett Chancery Court; Ralph Wilson, Jr.,
Chancellor; affirmed.
     Mona Mizell, for appellant/cross-appellee.
     Mike Everett, for appellee/cross-appellant.

     Ray Thornton, Justice.
     This case involves two issues:  the interpretation of Arkansas
Rules of Civil Procedure relating to personal service inside the
State, and sovereign immunity as a bar to appellee's claim against
the State.  
     Rule (4)(d)(1) of the Arkansas Rules of Civil Procedure
provides that substituted service of process may be made on an
individual by delivering a copy of the summons and complaint "at
his dwelling house or usual place of abode with some person
residing therein who is at least 14 years of age . . .." 
Appellant, the State of Arkansas Office of Child Support
Enforcement (OCSE) asks us to adopt a liberal interpretation of the
phrase, "dwelling house or usual place of abode."  The rules do not
define these terms.
     OCSE, acting on a paternity complaint against appellee, Garry
Mitchell, served process on Mitchell by handing the summons and
complaint to his mother at her house on 714 Lindsey, in Marked
Tree, Arkansas.  The evidence showed that Mitchell used his
mother's address for his mailing address, but that he lived at 507
Sam Anderson, in Marked Tree.  When Mitchell failed to appear at
the paternity hearing, a default judgment was entered under which
Mitchell's wages were garnished for child support.  Mitchell
immediately filed a motion to have the judgment set aside, claiming
that he was not properly served and that he was not the child's
father as alleged by the child's mother in the complaint.  Mitchell
failed to request an abeyance of support payments.
     Six months later, the trial court suspended Mitchell's wage
garnishment pending the outcome of genetic testing for paternity. 
By this time, Mitchell had paid $1377 in support to OCSE.  When the
paternity results showed that Mitchell could not be the child's
father, OCSE moved to dismiss its paternity complaint.  Mitchell
counterclaimed for return of the support payments on the basis that
he had not been properly served.  The trial court held that service
of process was invalid because Mitchell did not live at the
location where process was delivered; therefore, the judgment for
paternity and child support was void ab initio.  Further, it found
that Mitchell was precluded from suing the State for return of
payments under the doctrine of sovereign immunity.  OCSE appeals
the judgment of the trial court on the validity of service of
process, and Mitchell crossappeals the sovereign immunity ruling. 
We affirm on both points.
     OCSE asks the court to broaden the meaning of the phrase,
"dwelling house or usual place of abode" to include that location
which could be reasonably calculated to provide notice to defendant
of a pending action against him.  OCSE supports its argument with
two opinions from other jurisdictions.  In Doyle v. Barnett, 658 N.E.2d 107 (Ind. Ct. App 1995), a personal-injury case, Doyle
sought to have a default judgment against him set aside because
service of process was not delivered to his residence, but rather
to his father's house.  The evidence showed that Doyle received all
of his mail at his father's address, he listed his father's address
on the accident report, the address he maintained with his
insurance company was his father's address, and, at the time
service was attempted and when he sought to have the default
judgment set aide, Doyle's driver's license showed his father's
address.  In construing dwelling house or usual place of abode, the
Indiana Court of Appeals concluded that "[b]ased on the totality of
this evidence, we find that it was within the trial court's
discretion to determine that Doyle's father's address was Doyle's
usual place of abode, and because [plaintiff's] complaint was
delivered to that address, that Doyle received proper service of
the complaints."  Id. at 109.  
     The Washington Supreme Court construed its substituted service
statute so as to "effectuate the purpose of the statute while
adhering to its spirit and intent."  Sheldon v. Fettig, 129 Wash. 2d 601, 607, 919 P.2d 1209, 1211 (Wash. 1996).  The court
recognized two purposes to its statute:  "to (1) provide means to
serve defendants in a fashion reasonably calculated to accomplish
notice and (2) allow injured parties a reasonable means to serve
defendants."  Id. at 608, 919 P.2d  at 1212.  In Sheldon, the
defendant had lived away from her parent's home for over two years,
but maintained her driver's license, her car insurance, her voter's
registration, and mailing address at her parent's house.  At the
time of service, the defendant was living in another state.  The
court, recognizing that a defendant can "maintain more than one
house of usual abode if each is a center of domestic activity where
it would be most likely that defendant would promptly receive
notice if the summons were left there," held that defendant had
received valid service when process was delivered to her parent's
home.  Id. at 612, 919 P.2d  at 1214.
     As in Doyle and  Sheldon, above, the facts in this case
establish that the defendant, Mitchell, had significant contacts
with the place of service.  Mitchell received most of his mail at
714 Lindsey.  In addition, his driver's license, his employer, and
his property assessments all listed 714 Lindsey as his address. 
The only two sources Mitchell identified as having his 507 Sam
Anderson address were his landlord and the gas company, but it
appears that he had moved from his mother's house to the Sam
Anderson address six years before the commencement of this
litigation, and had not thereafter resided at his mother's house.
The record reflects that Mitchell maintained significant ties with
his mother's house.  He testified that he stops by 714 Lindsey at
least three time a week to see his mother and pick up his mail. 
OCSE claims that a defendant, who represents to most of the world
that his address is at a certain location, should not be able to
deny that it is otherwise.  As a conscientious plaintiff, OCSE
pleads that it should not suffer an adverse judgment when it relied
on an address that Mitchell reported to sources that OCSE regularly
uses for locating putative fathers.
     Notwithstanding the views of the courts cited above and OCSE's
argument, we are bound to prior case law under the doctrine of
stare decisis.  The policy behind stare decisis is to lend
predictability and stability to the law.  Parish v. Pitts, 244 Ark.
1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on
other grounds).  In matters of practice, "adherence by a court to
its own decisions . . . is necessary and proper for the regularity
and uniformity of practice, and that litigants may know with
certainty the rules by which they must be governed in the
conducting of their cases."  Brickhouse v. Hill, 167 Ark. 513, 523,
268 S.W. 865, 868 (1925) (quoting 7 R.C.L. 1008 (1915)).  In
Parish, this court held that "[p]recedent governs until it gives a
result so patently wrong, so manifestly unjust, that a break
becomes unavoidable."  Parish, 244 Ark. at 1252, 429 S.W.2d  at 52. 
The test is whether adherence to the rule would result in "great
injury or injustice."  Independence Fed. Bank v. Webber, 302 Ark.
324, 331, 789 S.W.2d 725, 730 (1990).  
     The issue of substituted service was squarely addressed in
Sims v. Prescott Feed Mills, Inc., 286 Ark. 22, 688 S.W.2d 743
(1985).  In Sims, the defendant and his brother lived in the same
dwelling.  The sheriff attempted to deliver service by handing a
copy of the summons and complaint to defendant's brother at law
offices of plaintiff's attorney.  The defendant never saw the
papers.  We held that service was void because an attorney's office
is not the defendant's dwelling.  In so ruling, we said: 
"Substituted service is a departure from the common law, and rules
or statutes providing for it are mandatory and to be complied with
exactly."  Id. at 23, 688 S.W.2d  at 744 (citing Edmonson v. Farris,
263 Ark. 505, 565 S.W.2d 617 (1978)).  We said that this
construction of the rule is the "most certain mode of conveying
actual notice to an absent defendant."  Id. at 24, 688 S.W.2d  at
744.  In Edmonson, like the case at bar, the appellant moved the
court to set aside the default judgment on the ground of defective
service of process.  The appellant's wife testified that she
collected the summons and complaint at the sheriff's office.  In
that case, we stated that because the deputy failed to comply with
the mandatory provisions of substituted service, the judgment was
void ab initio.  Id. at 509, 565 S.W.2d  at 618.
     OCSE argues that the  Sims and  Edmonson cases did not address
construction or definition of "dwelling" or "abode," but rather,
that these cases are predicated upon obvious departures from the
rule.  In Sims, the summons and complaint were left at a lawyer's
office, not at the defendant's, or anyone else's residence.  In
Edmonson, defendant's wife was served at the sheriff's office. 
OCSE argues that these cases are not on point with the facts
present here, as the court did not have to decide whether a
residence where service was effected was the defendant's dwelling
or usual place of abode.  
     OCSE's point is well taken.  This court, however, defined the
term, "usual place of abode" in McGill v. Miller, 183 Ark. 585, 37 S.W.2d 689 (1931).  In McGill, we held that "[o]ne's usual place of
abode, in its ordinary acceptation and in the sense used by the
statute, means the place where a person lives or has his home, that
is, his fixed permanent home; the place to which he hasþwhenever he
is absentþthe intention of returning."  Id. at 589, 37 S.W.2d  at
690.  The defendant in McGill had moved to Little Rock three months
before the institution of the suit.  He had a permanent job and
intended to move his family to Little Rock as soon as he could sell
his house in Lafayette County.  We held that service was
insufficient when his wife was served at the Lafayette County home
because the defendant had changed his usual place of abode.      
     Applying the McGill definition of place of abode to the facts
in this case, we hold that Mitchell has his usual place of abode in
a trailer at the 507 Sam Anderson address.  He lives in the
trailer, and pays the rent and utilities at that address.  Mitchell
testified that he does not live with his mother at the 714 Lindsey
address.  In light of our holdings that the rule for substituted
service of process must be complied with exactly, and because
Mitchell intends 507 Sam Anderson as his fixed and permanent home,
it follows that service of process at 714 Lindsey was insufficient
for the purpose of proper notice.
     The factual circumstances in this case are such that continued
adherence to precedent does not "give a result so patently wrong,
so manifestly unjust, that a break becomes unavoidable."  Parish,
at 1252, 429 S.W.2d  at 52.  It may be that a change in rules to
place a liberal construction on the meaning of dwelling house or
usual place of abode to include a "reasonable notice" component
might become appropriate in the future, but we choose to proceed
with caution.  We should not lose the predictability of knowing
that the method of service is the most certain to convey actual
notice to an absent defendant.  A departure from the settled rule
could lead to an escalation of litigation over notice as parties
dispute whether notice was actually received, or whether the chosen
method was reasonable.  
     We also note that the current rule does not unduly burden a
conscientious plaintiff.  If the defendant cannot be served in
person or at the place he resides, then the rules provide that the
plaintiff may serve process by sending "any form of mail addressed
to the person to be served with a return receipt requested and
delivery restricted to the addressee or the agent of the
addressee."  Ark. R. Civ. P. 4(d)(8)(A).  For these reasons, in
keeping with the doctrine of stare decisis we adhere to the current
rule.
     Because service of process was insufficient to give notice,
the default judgment below is void ab initio.  Ark. Code Ann.  16-
65-108 (1987).  We reach now Mitchell's claim that the doctrine of
sovereign immunity does not bar the court from awarding judgment
and assessing damages against the State for monies paid to the
custodial parent as child support by him.  The doctrine of
sovereign immunity comes from constitutional law providing that
"[t]he State of Arkansas shall never be made Defendant in any of
her courts."  Ark. Const. art. 5,  20.  We have held that the
doctrine of sovereign immunity is rigid and, as such, immunity may
be waived only in limited circumstances.  Cross v. Arkansas
Livestock & Poultry Comm'n, 328 Ark. 255, 258, 943 S.W.2d 230
(1997) (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478
(1996)).  Under the doctrine, the State possesses jurisdictional
immunity from suit.  Department of Human Servs. v. Crunkleton, 303
Ark. 21, 791 S.W.2d 704 (1990).  Where the suit is one against the
State and there has been no waiver of immunity, the trial court
acquires no jurisdiction.  Cross, 328 Ark at 259, 943 S.W.2d  at
232.  We have recognized exceptions to the doctrine of sovereign
immunity when an act of the legislature has created a specific
waiver of immunity, and when the State is the moving party seeking
specific relief.  Id. (citing State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Fireman's Ins. Co. v. Arkansas State Claims
Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied 498 U.S. 824 (1990)).  Mitchell argues that, here, the State waived its
immunity defense when it brought the paternity and child-support
actions against him.  We disagree.  
     In Fireman's Insurance, we noted that "[t]he only exception to
total and complete sovereign immunity from claims which have been
recognized by this court occurs when the state is the moving party
seeking specific relief.  In that instance[,] the state is
prohibited from raising the defense of sovereign immunity as a
defense to a counterclaim or offset."  Fireman's Ins. Co. v.
Arkansas State Claims Comm'n, 301 Ark. 451, 455, 784 S.W.2d 771,
774 (1990), cert. denied 498 U.S. 824 (1990) (quoting Parker v.
Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).  In Parker, this court
refused to consider the State's immunity defense when the State
Commissioner of Revenues, who was named as a defendant, intervened
and crosscomplained, asking for specific relief.  Parker v. Moore,
222 Ark. 811, 812, 262 S.W.2d 891, 892 (1953).  Relying on
Fireman's Insurance, Mitchell concludes that he is not precluded
from claiming a refund because his action in this case was by
counterclaim.  
     In addressing the sovereign immunity issue, we first decide
whether Mitchell has made a claim against the State.  If he has,
then sovereign immunity applies unless the State has waived its
defense.  We established the test for determining whether a suit is
one against the State in Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938).  There, we held that when the relief sought by a decree
"operates to control the action of the state or subjects it to
liability, the suit is in effect a `suit against the state' and
cannot be maintained without state consent."  Ralls v.
Mittlesteadt, 350 Ark. 741, 743, 596 S.W.2d 349, 351 (1980) (citing
Page, 196 Ark. at 336-37, 118 S.W.2d at 235)).  Accordingly, it is
the effect of tapping the state treasury that makes the State a
defendant.  See Magnolia Sch. Dist. 14 v. Arkansas State Bd. of
Educ., 303 Ark. 666, 799 S.W.2d 791 (1990) (noting that this court
will not order the State Treasurer to refund money already spent,
as such an action would amount to a suit against the State).      
     We conclude that Mitchell has made a claim against the State. 
In the action below, OCSE served only as a conduit for support
payments.  OCSE collected the money from Mitchell and disbursed it
directly to the custodial parent.  Were OCSE ordered to refund
previously paid child support, the only source of payment would be
the State Treasury.  Such a judgment would subject the State to
liability, making the State a defendant as contemplated by the
prohibition in Ark. Const. art. 5,  20.  As such, the suit is one
against the State, which cannot be maintained unless the State has
waived its immunity defense.
     To determine whether the immunity defense has been waived, we
address two questions:  (1) Did the State become a "moving party"
by virtue of bringing the paternity and child-support actions; and
(2) is the State asking for specific relief.  Two recent cases
inform our decision that the State is not a moving party.  Arkansas
Dep't of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847
(1993); D.H.S. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). 
In Crunkleton, we held that the statute providing for wage
assignments and deductions for child support "affords no
jurisdiction over the state."  Crunkleton, 303 Ark. at 23, 791 S.W.2d  at 705 (referring to Ark. Code Ann.  9-14-102 (Repl.
1993)).  Instead, the statute "merely provides a means by which the
payment of child support can be more effectively enforced."  Id. 
In that case, DHS did not become a moving party for the purposes of
waiver when it acted under the provisions of the statute to collect
child-support payments.  The next case extends this proposition.
         In Arkansas Dep't of Human Servs. v. State, the
precipitating act was DHS's petition for custody of certain
juveniles.  In a subsequent action against DHS for court costs and
restitution arising from offenses these juveniles committed, DHS
claimed the immunity defense.  We held that the State was not a
moving party when it sought custody of juveniles and appeared in 
dependency-neglect proceedings.  Id. at 488-89, 850 S.W.2d  at 850. 
We acknowledged the trial court's finding that DHS is obligated, by
statutory mandate, to initiate petitions in juvenile court whereby
it voluntarily subjects itself to the jurisdiction of the court. 
We held that because DHS was under an obligation to appear, it did
not voluntarily waive sovereign immunity.  Id. at 489, 850 S.W.2d 
at 851 (distinguishing Arkansas Game & Fish Comm'n v. Lindsey, 299
Ark. 249, 771 S.W.2d 769 (198)).   
     Like the State in Arkansas Dep't of Human Services and
Crunkleton, OCSE, in bringing its paternity and child-support
actions, is acting pursuant to statutory mandate.  Under Title IV,
part D of the Social Security Act, a state receiving federal funds
to administer a plan for child and spousal support must "provide
services relating to the establishment of paternity or the
establishment, modification, or enforcement of child support
obligations . . . to . . . any other child, if an individual
applies for such services with respect to the child; and enforce
any support obligation established with respect to . . . the
custodial parent of such a child."  42 U.S.C.   654(4)(A)(ii),
(B)(ii) (Supp. 1997).  Select sections within Title 9 of the
Arkansas Code, including wage assignments and deductions for child
support, govern OCSE actions.  Applying the reasoning of Crunkleton
and Arkansas Dep't of Human Servs., OCSE did not become a moving
party for the purpose of waiver when it initiated a paternity and
child-support action against Mitchell.  Pursuant to statutory law,
OCSE was obligated to subject itself to the jurisdiction of the
court to procure and enforce child support for the custodial
parent.  In so doing, it did not voluntarily waive sovereign
immunity.
     As to whether OCSE sought specific relief, we note, again,
that OCSE initiated the action on behalf of the custodial parent
for whom it sought specific relief.  That parent and the child were
not welfare recipients, so, OCSE did not itself benefit from the
suit by recouping any of the monies collected from Mitchell as an
offset to a welfare debt.  It follows, then, that even if OCSE were
a moving party, it did not waive its immunity defense because it
did not seek specific relief for itself.
     Mitchell has not sought permission to sue the State, nor has
the State waived its immunity.  See Arkansas Dep't of Human Servs.
v. State; D.H.S. v. Crunkleton, supra.  Therefore, the trial court
was correct in ruling that Mitchell's claim is barred by the
doctrine of sovereign immunity.  Plaintiffs like Mitchell, however,
are not left without remedy.  The Arkansas State Claims Commission
was established to provide for payment of all just and legal debts
of the State.  Ark. Code Ann.  19-10-201 to -201 (Repl. 1994).
     We are bound by the doctrine of stare decisis and the rule of
construction of laws in derogation of the common law.  As a result,
we decline to place a liberal construction on the meaning of
dwelling house or usual place of abode in the substituted process
rule.  This phrase means what it says it means:  the place where
the defendant lives or resides.  Because service of process was
delivered to Mitchell's mother's residence, service was invalid to
give notice, resulting in void paternity and wage-garnishment
judgments.  Under the principles of sovereign immunity, this court
does not have jurisdiction to order the State to refund Mitchell's
child-support payments.  
     Affirmed.