IN THE MATTER OF:
Buncombe County
CASH WALLACE PAWLEY, JR., No. 99 J 141
a minor child
The Moore Law Firm, by Jennifer W. Moore, for petitioners-
appellees.
Patla, Straus, Robinson & Moore, P.A., by Mark C. Martin, for
respondent-appellant.
WALKER, Judge.
On 9 February 1994, Cash Wallace Pawley, Jr. (the child) was
born of the marriage of Tracy Krauss (petitioner) and Cash Wallace
Pawley, Sr. (respondent). Petitioner and respondent divorced and
petitioner has since married the other named petitioner, Aaron C.
Krauss. Pursuant to the divorce, petitioner gained custody and
respondent gained visitation rights.
On 12 November 1997, upon returning the child at the end of a
visitation, petitioner and respondent were involved in an
“altercation.” As a result, respondent filed a warrant for assault
against the petitioner which resulted in her being jailed
overnight. Upon her release, she immediately filed a warrant forassault against the respondent and a complaint seeking domestic
violence protective orders. Several days after the altercation,
respondent returned home from work and was informed by his landlord
that “two large, unidentified males had been looking for the
Respondent earlier that day for the purpose of 'killing him.'”
Based on this information and the outstanding warrants, respondent
left this State and went to live with his brother in Florida. The
warrants were never served on the respondent while he was in
Florida.
In March of 1998, petitioner filed a custody action against
respondent seeking custody and child support. On 12 June 1998,
respondent received a notice through the mail from the trial court,
notifying him that a custody hearing had been held on 8 June 1998.
Enclosed was a copy of the trial court's order, dated 8 June 1998,
suspending his visitation rights until the warrants against him
were addressed. He continued to send child support payments to
petitioner until September 1998 when he notified the petitioner and
the clerk of court that he was unable to work and make payments
because of an injury.
In late January or early February 1999, respondent claimed he
mailed a birthday card along with cash to his son at petitioner's
address. He included a note telling petitioner that he would be
sending her a payment in the near future. The return address on
the birthday card was the following: 1342 E. Vine St., #408,
Kissimmee, Florida. Kissimmee, Florida is located in Lake County.
On 13 February 1999, respondent sent petitioner two money orders inthe amounts of $80.55 and $700.00. The address on both money
orders was the same Kissimmee, Florida address as had been given on
the birthday card. Petitioner does not deny the receipt of the
money orders.
Furthermore, respondent asserted in his affidavit that his
parents, the paternal grandparents of the child, were in regular
contact with the child and the petitioner throughout 1998, 1999,
and 2000 by telephone and visits at the petitioner's home.
Petitioner never questioned respondent's parents regarding the
respondent's whereabouts nor did she inform them of the petition to
terminate respondent's parental rights.
On 18 May 1999, petitioner filed a petition to terminate
respondent's parental rights. Petitioner attempted service by
certified mail, return receipt requested, at 7512 Dr. Phillips
Blvd., Orlando, Florida; however, it was returned unserved.
Orlando is located in Orange County. Petitioner alleges she
searched the telephone directory for Orange County and could not
find a listing for the respondent. Personal service was then
attempted by the Orange County Sheriff's Department but they could
not locate the respondent in Orange County. Petitioner then
proceeded with service by publication pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 4(j1)(1999).
Pursuant to a hearing, the trial court terminated respondent's
parental rights on 14 October 1999. The trial court found that the
respondent “was properly served by publication but failed to
respond or appear in court.” Respondent returned to Buncombe County in the spring of 2000
under the belief that his visitation rights had only been
temporarily suspended until the outstanding warrants were
addressed. He was served with the warrants and was ordered to
appear in court on 25 October 2000. These charges were
subsequently dismissed pursuant to a plea agreement. After the
hearing, respondent filed a motion in the cause seeking a
resumption of his visitation rights. Petitioner then informed him
that his parental rights had been terminated and her present
husband had adopted the child.
On 14 November 2000, respondent filed a motion to set aside
the order terminating his parental rights pursuant to Rule 60(b) of
the North Carolina Rules of Civil Procedure. At a hearing on the
motion on 8 December 2000, the trial court heard arguments from
counsel but did not receive evidence other than the verified motion
and affidavit of the respondent. Based on the information in the
file, the trial court made the following findings in part:
4. The Petitioners published the notice in the
Orlando Sentinel, Orlando, Florida, a
newspaper having circulation in Orange County,
Florida; Petitioner's counsel filed an
affidavit stating that the Respondent's last
known address was 7512 Dr. Phillips Blvd.,
Orlando, FL, which is located in Orange
County, Florida.
5. At the time the petitioners served the
Respondent, they were not actually aware of no
other address for Respondent despite
researching telephone records other than the
Orange County, Florida address.
6. The Respondents [sic] had no contact with
the Petitioner immediately prior to theirservice of the motion for termination of
parental rights.
. . .
8. The Petitioner Aaron Christopher Krauss
petitioned the Court to adopt the minor child,
which adoption was approved by a Decree of
Adoption by the Clerk of Superior Court,
Buncombe County, North Carolina, on 30 May,
2000.
9. On 13 February 1999, Respondent sent the
Petitioner Tracy Krauss two (2) money orders
in the amount of $780.85, which money order
reflected the address 1342 E. Vine St., #408,
Kissimmee, FL 34744.
10. Petitioners do not deny receipt of the
money orders, but do deny that they were aware
of any other address other than the Orange
County, Florida address, for Respondent at the
time of the filing of the Petition for
Termination of Respondent's Parental Rights,
in May, 1999.
Based on the findings, the trial court concluded the following in
part:
3. The Respondent failed to meet his burden of
proof that the Petitioners did not exercise
due diligence in their efforts to locate an
address for service of process before serving
him by publication pursuant to N.C. Gen. Stat.
§ 1-75.10.
4. The Respondent is barred by the doctrine of
laches because nineteen (19) months have
elapsed since the Petition for termination of
parental rights was filed, during which time
Respondent has not attempted to contact the
Petitioners regarding said Petition and the
Petitioners have obtained an order terminating
Respondent's Parental Rights and the minor
child has been legally adopted by Petitioner
Aaron Christopher Krauss.
The trial court denied the motion to set aside the order
terminating the respondent's parental rights. Rule 60(b)(4) of the North Carolina Rules of Civil Procedure
allows for the trial court to set aside a judgment or order when
that judgment or order is void. N.C. Gen. Stat. § 1A-1, Rule
60(b). “A defect in service of process by publication is
jurisdictional, rendering any judgment or order obtained thereby
void.” Fountain v. Patrick, 44 N.C. App. 584, 586, 261 S.E.2d 514,
516 (1980)(citing Sink v. Easter, 284 N.C. 555, 561, 202 S.E.2d
138, 143, rehearing denied, 285 N.C. 597, ___ S.E.2d ___ (1974)).
Thus, if service of process on the respondent were defective, the
order terminating respondent's parental rights in the child is void
and should be set aside pursuant to Rule 60(b).
On 17 May 1999, petitioner filed a petition for termination of
the parental rights of respondent. Thus, service of process was
controlled by N.C. Gen. Stat. § 7A-289.27, which has since been
repealed and replaced with N.C. Gen. Stat. § 7B-1106. Both
statutes require that “[s]ervice of summons shall be completed as
provided under the procedures established by G.S. 1A-1, Rule 4(j).”
N.C. Gen. Stat. §§ 7A-289.27(a), 7B-1106(a).
Rule 4(j) provides the procedures for service of process on
an individual. Rule 4(j1) provides “[a] party that cannot with due
diligence be served by personal delivery or registered or certified
mail may be served by publication.” N.C. Gen. Stat. § 1A-1, Rule
4(j1). Our Courts have 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.'”Hunter v. Hunter, 69 N.C. App. 659, 662, 317 S.E.2d 910, 911 (1984)
(quoting Hassell v. Wilson, 301 N.C. 307, 314, 272 S.E.2d 77, 82
(1980)).
If due diligence is not used to determine the address of the
respondent before using service by publication, the service of
process is defective and the order of termination of respondent's
parental rights is void. In re Adoption of Clark, 327 N.C. 61, 66-
67, 393 S.E.2d 791, 794, rehearing denied, 327 N.C. 488, 397 S.E.2d
214 (1990). Due diligence requires “that [petitioner] use all
resources reasonably available to her in attempting to locate
[respondent].” Fountain, 44 N.C. App. at 587, 261 S.E.2d at 516.
Here, three months prior to the petitioner filing the petition
for termination of parental rights and the attempted service of
process, the respondent sent money orders to the petitioner for
child support. The address on both money orders clearly showed
respondent's address to be in Kissimmee, Florida. Petitioner does
not deny receiving the money orders with the new address on them.
Thus, petitioner is charged with notice that respondent was then
residing in Kissimmee, Florida, which is in Lake County. Although
she attempted service at an Orlando address and searched the Orange
County telephone directory, there was no search made or attempt of
service at the address last provided by the respondent on the money
orders. Furthermore, petitioner never questioned respondent's
parents regarding his location.
Thus, we conclude petitioner failed to use due diligence in
attempting to serve the respondent either by personal service or bycertified mail before proceeding with service by publication.
Because there was a lack of due diligence, the attempted service
was defective and the order terminating respondent's parental
rights is void.
Because the order is void, the trial court also erred in
concluding that the respondent is barred by the doctrine of laches.
Without proper service, the respondent had no notice of the
termination order until he was so informed at the 25 October 2000
court proceeding. Respondent then timely filed his motion to set
aside the order.
Thus, the trial court erred in denying the respondent's Rule
60(b) motion to set aside the order terminating respondent's
parental rights.
Reversed.
Judges MCGEE and BIGGS concur.
Report per Rule 30(e).
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