Hunter v. Hunter

317 S.E.2d 910 (1984)

James F. HUNTER v. Betty S. HUNTER.

No. 8326DC933.

Court of Appeals of North Carolina.

July 17, 1984.

*911 Bill Constangy and Robert A. Karney, Charlotte, for plaintiff-appellant.

Paul B. Guthery, Jr., Charlotte, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in granting defendant's motion to set aside the divorce judgment in that service of process was properly obtained. We disagree and affirm the order of the trial court.

Rule 4(j)(1)(c) of the North Carolina Rules of Civil Procedure provides that service of process may be obtained "[b]y mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee."

Furthermore, G.S. 1-75.10 states:

Where the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows: .... (4) Service by Registered or Certified MailIn the case of service by registered or certified mail, by affidavit of the serving party averring: a. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested; b. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and c. That the genuine receipt or other evidence of delivery is attached.

Moreover, G.S. 1-75.11 provides:

Where a defendant fails to appear in the action within apt time the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by § 1-75.10....

The Supreme Court of North Carolina has held that "[s]tatutes authorizing substituted service of process, service of publication, or other particular methods of service are in derogation of the common law, are strictly construed, and must be followed with particularity." Hassell v. Wilson, 301 N.C. 307, 314, 272 S.E.2d 77, 82 (1980). In fact, this Court has held that failure to serve process in the manner prescribed by statute makes the service invalid, even though a defendant has actual notice of the lawsuit. Roshelli v. Sperry, 57 N.C.App. 305, 291 S.E.2d 355 (1982).

In the case at bar, plaintiff attempts to support his contention that process was properly served on defendant by showing that the summons was forwarded to defendant's last known address at 505 Southern National Center, Charlotte, North Carolina and that she subsequently came into possession of the letter and admitted to having notice of the divorce proceedings. We must find, however, that plaintiff did not comply with the statute and, therefore, failed to obtain proper service over defendant.

The affidavit presented by plaintiff's attorney to the court as proof of proper service reads as follows:

Pursuant to Rule 4(j)9(b), Robert A. Karney, being duly sworn says: 1. That he is the attorney of record for the Plaintiff in the above-entitled action. *912 2. That on January 28, 1981, I deposited in the United States Mail, a copy of the Summons and Complaint to be sent to the Defendant, Betty S. Hunter, # 2 Brittany Court, Charlotte, North Carolina, by certified mail, return receipt requested; that it was issued by the Post Office certified number 799737. 3. That on March 3, 1981, I received through the United States Mail, a copy of the Delivery Notice Receipt, showing the date delivered to Betty S. Hunter, the Defendant herein, that date being February 6, 1981, and bearing the signature of the Defendant, Betty S. Hunter. 4. The Delivery Notice Receipt received from the United States Post Office is evidence that Betty S. Hunter, the Defendant in this action, received a copy of the Summons and Complaint. 5. That the Delivery Notice Receipt attached hereto is a copy of the receipt of delivery. s/ROBERT A. KARNEY

Strictly construing the language of G.S. 1-75.10, we find that plaintiff has failed to show proof of service of process in the manner provided by the statute. We do not agree with the assertion that the "Delivery Notice Receipt" received by plaintiff's attorney stands alone as proof of valid service. The affidavit and accompanying delivery receipt show only that the summons was forwarded to defendant's place of business. There is no showing from the affidavit that defendant herself received a copy of the summons and complaint. The trial court had before it no evidence from which it could have determined that the summons was in fact delivered to defendant since there was no genuine registry receipt or "other evidence" of delivery attached to the affidavit. We, therefore, conclude that plaintiff did not establish valid service of process over defendant and affirm the order of the trial court setting aside the judgment of divorce. Recognizing the somewhat technical nature of the holding, we call attention to the importance of following statutes authorizing substituted service of process with particularity.

Plaintiff next contends that defendant did not make her motion to set aside the divorce judgment within a reasonable time, therefore precluding her from recovery. We reject this contention without further comment. We have carefully examined plaintiff's remaining assignments of error and find in them no merit.

Affirmed.

WHICHARD and EAGLES, JJ., concur.