Fife v. Martin

NO. 93-248
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

DAVID ELLIOTT FIFE,
Petitioner and Appellant,
v.

PATRICIA LEE MARTIN,
Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Paul Neal Cooley, Skelton & Cooley, Missoula,
Montana
For Respondent:
John McRae, Child Support Enforcement Division,
Missoula, Montana: James P. Taylor, Missoula,
Montana: Lynn M. Grant, Child Support Enforcement
Division, Helena, Montana

Submitted on Briefs: September 30, 1993
Decided: November 10, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Petitioner David Fife brought this action seeking judicial

review of the Department of Social and Rehabilitation Services,

Child Support Enforcement Division's (CSED's), order which required

him to submit to blood testing for purposes of establishing

paternity. The District Court for the Fourth Judicial District,

Missoula County, denied Fife's petition for failure to properly
serve CSED with a copy of the petition, as required by the

provisions of the Montana Administrative Procedure Act. After
petitioner moved for relief from the court's order, the court found

that he served neither the Attorney General nor CSED as required by

law, and dismissed the action with prejudice. Petitioner appeals

from that ruling. We affirm.

The pertinent issues are rephrased as follows:

1. Whether CSED is a necessary party to an action for

judicial review of its administrative paternity hearing and

subsequent order:

2. Whether, in an action for judicial review of an agency

decision, service of process is valid when the petitioner fails to

serve the agency properly and promptly after filing the petition

for review:
3. Whether a district court may dismiss an action for

judicial review of an agency decision for failure of the petitioner

to validly serve process, when the court has not received a

responsive pleading from the agency involved.

2
 Patricia Lee Martin (Patricia), a single mother, gave birth to
B.J.M. on September 30, 1981. Approximately ten years later, she
applied for public assistance under the Aid to Families with
Dependent Children program, and named David Elliot Fife (David) as
B.J.M.'s father. As part of the application process she assigned
all of her rights to collect delinquent, future and present child
support obligations from the putative father to the State of
Montana, Department of Social and Rehabilitation Services.
CSED thereafter sought enforcement of its assigned rights by
attempting to establish the paternity of B.J.M. It sent David a
notice of parental responsibility, and then set a date for an
administrative hearing on the matter.
David in return moved the agency to dismiss the action,
challenging the constitutionality of CSED's process to determine
paternity by compelled blood drawings. Acknowledging that
constitutional issues cannot be determined in CSED's administrative
forum, the hearing examiner denied David's motion. Following the
hearing, the hearing examiner concluded there was sufficient
evidence to demonstrate a reasonable probability that David may be
the father of B.J.M., and ordered David to submit to paternity
blood testing.
On November 19, 1992, David moved CSED to stay its decision
and transmit the administrative record to the Fourth Judicial
District Court, Missoula County, where he planned to file a
petition for judicial review. On November 23, 1992, CSED responded
3
by denying David's motion on the grounds that CSED had not been
served with a petition for judicial review of its administrative
hearing order.
David thereafter filed a petition for judicial review at the
District Court on November 25, 1992. He later (on or about
November 30, 1992) mailed copies of the petition to both Patricia
and CSED. In his petition, David named Patricia as the sole
respondent.
On December 3, 1992, David sent notice that he had filed a
petition for judicial review to the administrative hearing
examiner, CSED, and Patricia. The notice stated that a copy of the
petition was "attached to the original [petition for judicial
review]," which had been previously mailed to CSED and to Patricia.
CSED filed a copy of the transcript and administrative hearing
record with the court; it neither answered the mailed petition for
judicial review or the notice of filing nor appeared in court.
Subsequently, David obtained and sent a summons to CSED and
Patricia. He also sent an acknowledgement of service form to each
of those parties on January 11, 1993. However, CSED did not accept
service of process or acknowledge service of the summons and
complaint as required by Rule 4D, M.R.Civ.P.
Prior to trial, the court reviewed the record and David's
petition and dismissed the action on the grounds that CSED had not
been properly named nor served with process. The court also denied
David's motion to stay the agency's decision.
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 David moved for relief from the order of dismissal on February

8, 1993, arguing, among other things, that the court should not
have reviewed the administrative hearing record, that the order
deprives him of his day in court, and that CSED was not a necessary
party to the proceedings before the court. In its response, CSED
agreed with the court's holding that David had failed to properly
serve the parties involved in the action.
By order dated March 23, 1993, the court reiterated its
previous ruling, and also found that David had failed to serve the
Attorney General's Office. David appeals.
I
IS CSED a necessary party to an action for judicial review of
its administrative paternity hearing and subsequent order?
In his petition for judicial review, David named Patricia as
the sole respondent. His present argument, which is not specific,

is that he could not properly serve the State because the case had
already been dismissed in the District Court. Additionally, he
asserts that "[nleither the State nor CSED were parties before the
Administrative Hearing Examiner." In the same paragraph of his
brief, he contrarily states that "CSED, however, did represent
[Patricia's] interests.“
David's arguments are not persuasive. Patricia had assigned
her child-support collection rights over to CSED as part of the Aid
to Dependent Families with Children application process. CSED is
the real party in interest in the paternity action and in the
5
underlying attempt to recover payment of child support benefits

from the putative father of B.J.M. See § 40-5-232, MCA. Immedi-

ately prior to the hearing, the hearing examiner correctly gave

notice to the parties that CSED was the real party in interest, by

stating

[slection 40-5-232 of the Montana Code states that if the
paternity of child has not been established, the DeDart-
& [CSED] may proceed to establish the paternity
administratively as allowed by Section 40-5-231 through
40-5-237 Montana Code Annotated. [Emphasis supplied].
CSED initiated proceedings to determine paternity: Patricia

was merely assisting the agency in determining the identity of

B.J.M.'s father. See §§ 40-5-202 and -204, MCA. Moreover, the
record reveals that David, CSED and Patricia were all represented

in their individual capacities during the administrative hearing.

This cumulative evidence leads us to conclude the District Court

did not err in ruling that CSED was the real party in interest.

II

In an action for judicial review of an agency decision, is

service of process valid when the petitioner fails to serve the

agency properly and promptly after filing the petition for review?

David argues that he served all of the parties of record by

mailing copies of the petition of judicial review to CSED and

Patricia, and that the District Court should have added CSED as a

party to the action. He asserts the court's order denies him of

his day in court based merely on a technicality. CSED argues that

6
it was never validly served, and therefore the District Court was
without jurisdiction to try the case. We agree with CSED.
As discussed above, CSED, the real party in interest, was the
proper respondent to David's petition for judicial review. David
failed to properly name CSED as the respondent in his petition for
judicial review, and he failed to properly serve the agency as
required by 3 2-4-702, MCA. That section required David to serve
copies of the petition promptly upon "the agency and all parties of
record." Construing the language of § 2-4-702, MCA, this Court has
stated
service of a petition for judicial review within thirty
days, or thereabouts, from the time the petition was
filed in the District Court should not result in a
dismissal [for failure to comply with § 2-4-702(2)(a),
MCA]. . . .
Rierson v. State (1980), 188 Mont. 522, 528, 614 P.2d 1020, 1024.
Judicial review of administrative actions exists as a creature
of statute. Section 2-4-702, MCA, provides for judicial review of
an administrative agency decision only after certain procedures
have been followed. The procedures comprise a jurisdictional
threshold which must be met in order to vest authority in a
district court. See generally Nye v. Dep't of Livestock (1982),
196 Mont. 222, 226, 639 P.2d 498, 500, citinq Art. VII, 5 4,
Mont.Const. Service of process upon CSED must be made as required
by Rule 4D(2)(h), M.R.Civ.P., which provides that when serving
process upon any state board or agency, a party needs to deliver a

7
copy of the summons and complaint to the Attorney General and to
any other party which may be prescribed by statute.
David filed the petition on November 25, 1992. By mailing a
copy of the petition to CSED and Patricia, he did not effectuate
valid service of process because Rule 4D(2)(h), M.R.Civ.P., does
not provide for service by mail upon CSED and because he failed to
serve the Attorney General's Office. We conclude David did not
effectuate valid service of process as required by law, and the
District Court correctly held that it was without jurisdiction to
hear the case.
III
May a District Court dismiss an action for judicial review of
an agency decision for failure of the petitioner to validly serve
process, when the court has not received a responsive pleading from
the agency involved?
David argues that the court dismissed the action before CSED
filed a responsive pleading in the matter. He contends the court
is without authority to issue an order, when no party specifically
requested the order. Additionally, David alleges that 5 40-5-

236(3), MCA, gave the court jurisdiction in this matter and that
the court obtained personal jurisdiction over CSED through its
voluntary appearance. His arguments are without merit.
Failure to make proper service of process prevents the court
from obtaining jurisdiction in a case. See generally In Re
Marriage of Fonk and Ulsher (Mont. 1993), _ P.2d -r -t 50
8
St.Rep. 1112, 1113. When David failed to validly serve process

upon the agency and the State of Montana, he prevented the District

Court from obtaining jurisdiction over the action. The court is

not required to wait for a party who has not been properly served

to file a responsive pleading prior to dismissing the action for

lack of jurisdiction.

Because the District Court did not have jurisdiction over
CSED, the petition for judicial review was a mere nullity and was

properly dismissed. We conclude the District Court did not err

in dismissing the case.

Affirmed.

We concur:

9
 November 10, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Paul Neal Cooley
Skelton & Cooley
101 E. Main St.
Missoula, MT 59802

John McRae, Esq.
Dept. of SRS, Child Support Enforcement Div.
2501 Catlin, Ste. 208
Missoula, MT 59801

James P. Taylor
Attorney at Law
111 N. Higgins, Ste. 303
Missoula. MT 59802

Lynn M. Grant
Child Support Enforcement Div.
P.O. Box 5955
Helena, MT 59604

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA