Process and Service_personal jurisdiction_service by publication_invalid
Personal jurisdiction was not obtained through service by publication, and a child custody
and support order was reversed, where there was no affidavit in the record showing the
circumstances warranting the use of service by publication, or showing plaintiff's due diligence
in attempting to locate defendant. The trial court's finding that plaintiff had made diligent efforts
to locate defendant was not supported and did not cure plaintiff's failure to strictly comply with
the statute permitting service by publication. N.C.G.S. § 1A-1, Rule 4(j1).
Lerlean Cotton, plaintiff-appellee, pro se.
Timothy M. Stokes for defendant-appellant.
HUNTER, Judge.
Joseph Jones (“defendant”) appeals from an order dated 20
August 2002 denying his “Motion for Relief from Judgment or Order”
and requiring him to comply with a child support and custody order
filed 9 July 2001. We conclude the requirements for service by
publication were not met and no personal jurisdiction was obtained
over the defendant. Therefore, the order denying relief from
judgment is reversed and the underlying child support and custody
order is vacated.
On 1 April 2001, Lerlean Cotton (“plaintiff”) filed a
complaint against defendant seeking custody of her two children and
an order for defendant to pay child support. The complaint allegedthat defendant had stated he did not want to support or be held
responsible for his children. The complaint also alleged that both
parties were residents of Mecklenburg County, North Carolina, that
the children had resided with plaintiff since their birth, and that
Mecklenburg County District Court had both personal and subject
matter jurisdiction over the matter. On 2 April 2001, a civil
summons was issued to defendant stating his name but no address.
The word “unknown” appeared in the section designated for an
address. There is no indication in the record of any attempt to
serve defendant by mail at his last known address. Although the
judge believed plaintiff had made diligent efforts to locate
defendant, plaintiff failed to file with the trial court an
affidavit required under N.C. Gen. Stat. § 1A-1, Rule 4(j1),
showing the circumstances warranting her use of service by
publication and any information regarding the location of
defendant. Instead, Notice of Service of Process by Publication
was published in the Mecklenburg County Times on 13 April, 20
April, and 27 April 2001. On 9 July 2001, following a hearing
(See footnote 1)
at
which defendant was not present, the trial court entered an order
granting custody to plaintiff, requiring defendant to pay child
support, and denying defendant visitation. The order stated
defendant was not present but that he had been served with notice
of publication. A subsequent order amended the child support
portion of the 9 July 2001 order to note that the 9 July 2001 order
replaced a previous order entered in the State of Georgia. On 15 May 2002, defendant filed a motion for relief from
judgment or order. The motion alleged that the trial court lacked
jurisdiction over defendant, as plaintiff had made no attempts to
locate defendant prior to service by publication and had failed to
file the required affidavit under Rule 4(j1) of the North Carolina
Rules of Civil Procedure. On 20 August 2002, the trial court
entered an order denying defendant's motion for relief from the
judgment or order. In that order, the trial court found plaintiff
had been questioned in open court at the 9 July 2001 hearing about
her efforts to locate defendant and “satisfied the [trial] [c]ourt
that she had made diligent efforts to locate [defendant]. . . .”
Based on this finding the trial court concluded it had personal
jurisdiction over defendant.
Defendant contends that the trial court erred in failing to
grant his motion for relief from judgment or order made under Rule
60 of the North Carolina Rules of Civil Procedure, see N.C. Gen.
Stat. § 1A-1, Rule 60 (2001), because service by publication was
invalid and, as a result, the trial court obtained no personal
jurisdiction over him. Thus, the dispositive issue is whether the
service of defendant by publication was valid.
Rule 60(b)(4) of the Rules of Civil Procedure provides that a
trial court may grant relief from a judgment or order if “[t]he
judgment is void.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(4). “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(1974)). “Service of process by publication is in derogation of
the common law. Therefore, statutes authorizing service of process
by publication are strictly construed, both as grants of authority
and in determining whether service has been made in conformity with
the statute.” Id. Rule 4(j1) permits service by publication on a
party that cannot, through due diligence, otherwise be served. See
N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2001). Under this rule: “Upon
completion of such service [by publication] there shall be filed
with the [trial] court an affidavit showing the publication and
mailing . . . , the circumstances warranting the use of service by
publication, and information, if any, regarding the location of the
party served.” Id. Failure to file an affidavit showing the
circumstances warranting the use of service by publication is
reversible error. Edwards v. Edwards, 13 N.C. App. 166, 169-70,
185 S.E.2d 20, 22 (1971). Furthermore, in In re Phillips, 18 N.C.
App. 65, 196 S.E.2d 59 (1973), this Court held that where the
record contained only an affidavit showing the notice of service by
publication was duly published in a qualified newspaper, but that
no affidavit was filed showing the circumstances warranting use of
service by publication, and the trial court simply made a finding
that personal service was “'impractical,'” the trial court's order
must be vacated. Id. at 70, 196 S.E.2d at 61-62.
In this case, as in Phillips, the record contains an affidavit
from the newspaper attesting to the publication of the notice of
service by publication. There is, however, no affidavit showing
the circumstances warranting a use of service by publication, or
showing plaintiff's due diligence in attempting to locatedefendant. In the underlying child custody and support order dated
9 July 2001, the trial court found only that defendant was served
with notice of publication. There was no finding that plaintiff
had exercised due diligence in her attempts to locate defendant.
The trial court, in subsequently denying defendant's motion for
relief from judgment or order, found plaintiff had satisfied the
trial court that she had made diligent efforts to locate defendant.
There is nothing, however, in the trial court's original order, or
elsewhere in the record, to support this finding and it does not
cure plaintiff's failure to strictly comply with the statute
permitting service by publication. Further, there is nothing in
the record on appeal to support plaintiff's log from the
Mecklenburg County Sheriff's Department which she included in her
brief to this Court to prove she exercised due diligence in
attempting to locate defendant.
As service by publication on defendant was invalid, the trial
court did not have personal jurisdiction over defendant. See
County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 160-
61, 323 S.E.2d 458, 463 (1984) (where there was no affidavit
showing circumstances warranting use of service by publication or
alleging facts showing due diligence, no in personam jurisdiction
was established over the defendant). Thus, as the trial court had
no personal jurisdiction over defendant, the 9 July 2001 child
custody and support order is void, and the trial court erred in
denying defendant's Rule 60(b) motion for relief from judgment or
order. See id. Accordingly, we are required to reverse the 20
August 2002 order denying defendant relief from judgment or order,and vacate the underlying 9 July 2002 child custody and support
order. See id.
Reversed and vacated.
Judges McGEE and CALABRIA concur.
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