No. 90-595
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
WILLIAM A. BLASKOVICH,
Petitioner and Respondent,
-vs-
DUANNA F. BLASKOVICH,
Respondent and Appellant. C L ~ 3nLrtd
CLERK CF SUPRErkqf
S'f'A'iE OF MOru ;PANA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas G. Skjelset; Skjelset Law Offices, Missoula,
Montana.
For Respondent:
Christopher Daly, Missoula, Montana.
Submitted on briefs: April 25, 1991
Decided: July 23, 1991
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Respondent and appellant, Duanna F. Blaskovich, filed a motion
to set aside a default decree of dissolution obtained by the
petitioner and respondent, William A. Blaskovich, in the Fourth
Judicial District Court, Missoula County. When the District Court
failed to rule on the motion within 45 days, the motion was deemed
denied. Duanna appeals. We reverse and remand.
The dispositive issue on appeal is whether the District Court
erred in failing to set aside the default decree of dissolution and
property settlement as void for lack of personal jurisdiction over
Duanna due to insufficient service of process.
Duanna and William Blaskovich were married in Missoula on
October 14, 1981. During the marriage, the parties acquired
various items of property. They had no children.
On January 25, 1990, William filed a petition for dissolution.
The following day at the office of William's attorney, Duanna was
shown a copy of the petition and an acceptance of service form,
which she refused to sign. She informed William and his attorney
that she would be moving to Roy, Utah. Later that day, she phoned
the attorney to give him her Utah address, 5463 South 2775 West,
as well as a post office box number.
On January 30, 1990, William sent the summons and petition to
the sheriff of Weber County, Utah, the county in which the town of
Roy is located. The papers were accompanied by a letter directing
the sheriff to serve Duanna at 5563 South 2775 West in Roy, an
address that differed from the one given him by Duanna by only one
digit. Unable to locate Duanna because no such address could be
found, the sheriff did not complete service and returned the papers
to William.
William then forwarded copies of the petition and a notice and
acknowledgment of service by mail form to Duanna's post office box.
In response, Duanna sent a letter to William, acknowledging that
she had received "divorce papers1' and refusing to sign any
documents. At the hearing to set aside the default, Duanna
claimed that the summons was not included with these papers.
On March 27, 1990, the hearing on the dissolution was held.
At the hearing, William claimed that he was unable to personally
serve Duanna because she had supplied him with a "bogus" address.
He told the court that he had then attempted service by mail but
that Duanna had refused to sign the acknowledgment form. Based
upon William's assertion of due diligence in attempting personal
service, as well as his assertion that Duanna had deliberately
concealed her true address, the court found that Duanna's reply
letter constituted proof of constructive or substituted service.
The court thereupon entered the default dissolution and distributed
the property of the parties.
Upon learning of the court's ruling, Duanna filed a motion to
set aside the decree under Rules 4D and 60(b), M.R.Civ.P. The
motion, filed within 180 days after rendition of the decree, was
timely under Rule 60(b), M.R.Civ.P.
The court heard testimony but failed to rule on the motion
until the 45-day jurisdictional time limit elapsed. The motion was
therefore deemed denied. Nevertheless, the court issued an
advisory opinion, stating that, although it had lost jurisdiction
over the matter, it was of the opinion that the default judgment
should be set aside for lack of personal jurisdiction over Duanna
due to insufficient service of process. The court found that it
was reasonable to infer that Duanna supplied William with a correct
street address rather than a I1bogusuand deliberately fraudulent
address and that William made an error in transcribing the address
when he asked the Weber County Sheriff to personally serve her.
The court found that Duanna did not deliberately conceal her
address and that Williamls failure to personally serve her was due
to his own error and lack of diligence.
Duanna now appeals.
Personal jurisdiction may be obtained only through strict
compliance with the Rule 4D, M.R.Civ.P., which governs service of
process. Sink v. Squire, 236 Mont. 269, 273, 769 P.2d 706, 708
(1989); Shields v. Pirkle Refrigerated Freightlines, Inc., 181
Mont. 37, 45, 591 P.2d 1120, 1125 (1979). When service is flawed,
it I1conf [s] no jurisdiction and the default judgment entered
er
therein [is] void.I1 Shields, 181 Mont. at 45, 591 P.2d at 1125.
Personal service may be obtained outside of the state of
Montana in the same manner provided for service within the state.
Rule 4D(3), M.R. Civ.P. Thus, in conformity with Rule 4D(2) (a),
M.R. Civ.P., a plaintiff may serve a competent adult who resides
outside of this state by delivering a copy of the summons and
complaint to her personally. A plaintiff may also serve a
competent adult by sending a summons, complaint, and notice and
acknowledgment of service through the mail, provided the defendant
signs and returns the notice and acknowledgment form. Rule
4D(l) (b), M.R.Civ.P.
In the present case, William attempted to personally serve
Duanna in accordance with Rule 4D(2)(a), M.R.Civ.P. Service could
not be completed, however, because William gave the Weber County
Sheriff the wrong address.
When personal service was ineffective, William attempted to
serve Duanna by mail in accordance with Rule 4D(l)(b), M.R.Civ.P.
Duanna admitted that she received the complaint and the notice and
acknowledgment form. She contended, however, that William did not
include the summons with the other papers.
If William failed to send the summons to Duanna, service was
ineffective. However, even if William did send the summons with
the other papers, the court did not have jurisdiction over her.
Jurisdiction cannot be obtained simply by mailing a copy of the
summons and complaint to the defendant. Service by mail is not
complete until the notice and acknowledgment of receipt of summons
is signed by the defendant. Rule 4D(1) (b)(iii), M.R.Civ.P. If the
defendant refuses to sign and return the acknowledgment, the
plaintiff is required to personally serve the defendant. Rule
4D(1) (b)(i), M.R.Civ.P.
The notice and acknowledgment received by Duanna provided as
follows:
You mav complete the acknowledgment part of this form
and return one copy of the completed form to the sender
within 20 days after the date it was mailed to you as
shown below.
If you do not complete and return this form to the sender
within 30 days after the date it was mailed to you as
shown below, you may be required to pay any expenses
incurred in serving a summons and petition in any other
manner permitted by law.
If you do complete and return this form, you must answer
the Petition within 20 days after the date of signature
which you place on the acknowledgment below. If you fail
to answer the Petition within the foregoing 20 day
period, judgment by default will be taken against you for
the relief demanded in the Petition. (Emphasis added.)
The acknowledgment informed Duanna, in conformity with Rule
4D(l) (b)(ii), M.R. Civ.P., that the only penalty she would suffer
if she chose not to sign and return the acknowledgment would be
liability for the costs of other methods of service of process.
It further informed her that if she signed the acknowledgment and
then failed to answer the petition, she would be in danger of
default. It did not inform her that by sending a letter in which
she explicitly refused to sign the acknowledgment she could also
suffer a default.
Duanna acted within her rights when she refused to sign and
return the acknowledgment of service. Although she had actual
knowledge of the impending suit, actual knowledge without proper
service is insufficient to confer jurisdiction.
Furthermore, William was not left without a method in which
to achieve service. He could have served Duanna by publication
under Rule 4D(5), M.R.Civ.P., or he could have undertaken further
efforts to find her correct address in Utah.
William did not properly serve Duanna. Consequently, the
District Court did not acquire personal jurisdiction over her and
the default decree of dissolution is void.
Reversed and remanded for further proceedings consistent with
this opinion.
We Concur:
J"c-7-p- Chief Justice
\ Justices