NO. 93-140
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
MICKEY D. FONK,
Petitioner and Appellant,
v.
MAVANEE J. ULSHER,
Respondent and Respondent,
and
J.C.F. and S.J.F., Minor Children,
and
MONTANA DEPARTMENT OF SOCIAL AND
REHABILITATION SERVICES, CHILD
SUPPORT ENFORCEMENT DIVISION,
Real Party in Interest.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael V. Sinclair, Coil & Sinclair, Bozeman,
Montana
For Respondent:
Robert T. Cummins, Helena, Montana
Peggy Probasco, CSED, Butte, Montana
Submitted on Briefs: August 12, 1993
SEP281993 Decided: September 28, 1993
Fi1ed: (J-J*
CLER,< <,p sli:~i-ii;::;. couel-
STATE CA:- MUN i‘AiJA
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Petitioner Mickey Fonk brought this action to recover monies
involuntarily paid for child support, to determine paternity and to
question service of process on the basis that he had not been
personally served in the underlying dissolution proceeding. The
District Court for the First Judicial District, Lewis and Clark
County, dismissed Fonk's service of process claim and entered final
judgment. Fonk appeals that portion of the judgment which denies
his motion to quash service of process. We reverse the District
Court.
The sole issue on appeal is whether service of process is
valid when a process server leaves a summons and petition with a
family member at the residence of the person sought to be served.
Mickey Fonk (Mickey) and Mavanee Ulsher (Mavanee) were married
December 1, 1982, at Helena, Montana. Two children, J.C.F. and
S.J.F., were born during the marriage. The couple separated, and
Mavanee petitioned for dissolution of marriage on July 18, 1986, in
the District Court for the First Judicial District, Lewis and Clark
County.
On August 3, 1986, a Gallatin County deputy sheriff left the
summons and complaint in the dissolution proceeding with Betty
Fonk, Mickey's mother, at her home in which Mickey then resided.
Mickey was not home at the time. In his return on service, the
deputy erroneously stated that he had personally served Mickey.
2
Betty Fonk later stated that she did not know whether Mickey had
received the service papers.
On April 2, 1987, the District Court entered a default decree
dissolving the marriage of Mavanee Ulsher and Mickey Fonk,
distributing their marital assets between them, and ordering Mickey
to pay child support of $75 per month for each of the two minor
children. Mavanee was present at the proceeding: Mickey was not.
Mavanee, who received government Aid to Families with
Dependent Children (AFDC), assigned her AFDC rights to the
Department of Social and Rehabilitation Services, Child Support
Enforcement Division (CSED). CSEDthereafter sought enforcement of
its assigned child support rights by intercepting Mickey's tax
refunds and garnishing his income. Mickey stated that he first
became aware of the dissolution and his child support obligations
indirectly during 1990 when he sought legal advice regarding his
1989 income tax returns.
On June 14, 1991, Mickey filed this action alleging that he
was not the natural father of the two minor children and requesting
that the court order the State of Montana, Department of Social and
Rehabilitation Services and Mavanee to reimburse him for all
involuntarily-paid child support. Mickey also claimed that he had
not been properly served in the underlying dissolution proceeding
and that Mavanee committed fraud upon the court by representing
that he had fathered the two children.
3
On July 18, 1991, Mavanee filed her response to the paternity
action and included a cross-petition for increased child support.
She moved for dismissal of Mickey's petition, arguing that the
paternity issue was B iudicata and that his petition was a
collateral attack on the default judgment entered in the dissolu-
tion action.
After an April 3, 1992, hearing on the service of process
issue, the court held:
[I]t became apparent that the Sheriff of Gallatin County
had not, in fact, ever served Mickey Fonk with [the]
papers. However, it does appear to this Court that
Mickey was personally sewed with [the] papers. The law
does not require that the service be made by the Sher-
iff's office.
Testifying in this matter was Mickey's mother,
Betty. She indicated that when the Sheriff came to her
house on August 3, 1986, her son was not home. The
Sheriff left the papers with her. Her son came home
later in the day and she indicates that she gave the
papers to Mickey. She indicates that this occurred by
her directing Mickey's attention to the papers that were
lying on a table. She notes that the next day the papers
were gone so that "he must've picked them up." The
testimony of Mrs. Fonk was under oath. This Court
considers her testimony to be the proof of service in
this matter. Without the testimony of Mickey's mother,
the Court would have to hold that he was not served with
process.
Prior to the final adjudication of the case, Mickey prematurely
appealed the District Court's ruling and this Court dismissed the
appeal without prejudice on November 20, 1992. The District Court
entered final judgment as to Mickey's service of process claims
pursuant to Rule 54(b), M.R.Civ.P., on February 16, 1993; Mickey
now appeals that service of process ruling.
4
Was there valid service of process when the Gallatin County
deputy left the dissolution proceeding petition and summons with a
family member at Mickey's residence?
Mickey contends that service of process was invalid because he
was not personally served as required by Rule 4D(Z)(a), M.R.Civ.P.
Mavanee contends that the service was valid because the District
Court found that Betty Fonk's testimony pertaining to Mickey's
receipt of the documents was credible evidence establishing
personal service.
Our standard of review concerning a district court's conclu-
sions of law is to determine whether the court's interpretation of
the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603. Normally, the burden of
proof necessary to overcome statements and recitals in a sheriff's
return must be clear, unequivocal, and convincing. Sewell v.
Beatrice Foods Co. (1965), 145 Mont. 337, 341-42, 400 P.2d 892,
894. Here, the record reflects that the deputy's return on summons
was erroneous because it stated that the deputy personally served
Mickey J. Fonk. There being no dispute about this fact, we examine
whether service was valid.
The nature of service is twofold: it serves notice to a party
that litigation is pending, and it vests a court with jurisdiction.
Improper service undermines a court's jurisdiction, and a default
judgment subsequently entered is thereby void. See Sink v. Squire
(19891, 236 Mont. 269, 273, 769 P.2d 706, 708; Shields v. Pirkle
5
Refrigerated Freight Lines, Inc., et al. (1979), 181 Mont. 37, 45,
591 P.2d 1120, 1125.
Alternate means exist which obligate a person to become
involved as a party in a civil lawsuit. One is valid service of
process under Rule 4D, M.R.Civ.P., and the other is a voluntary
appearance by a named party. See Spencer v. Ukra (1991), 246 Mont.
430, 804 P.2d 380 (voluntary appearance waives all irregularities
in service of process). Because Mickey did not voluntarily appear
at the dissolution proceeding, we focus on service of process.
The directions of the service of process rule are mandatory
and must be strictly followed even where a defendant has actual
notice of the summons and complaint: knowledge of the action is not
a substitute for valid service. See In re Marriage of Blaskovich
(1991) I 249 Mont. 248, 815 P.2d 581; Holt v. Sather (1928), 81
Mont. 442, 264 P. 108. Service of process shall be made
upon an individual other than an infant or an incompetent
person, by delivering a copy of the summons and of the
complaint to the individual personally . . . . [Emphasis
supplied.]
Rule 4D(2)(a), M.R.Civ.P.
Here, the Gallatin County deputy sheriff erred by delivering
the service of process to Betty Fonk and signing a return on
summons document which erroneously stated that Mickey J. Fonk was
personally served. When Mickey questioned the validity of the
service of process, the court ruled that Betty Fonk made valid
service upon Mickey after finding that the law does not require
6
that service be made by the sheriff's office. We disagree with the
court's ruling.
The Montana Rules of Civil Procedure permit "other" service of
process or service by publication (otherwise known as constructive
service) only in limited contexts, none which apply to the present
situation. See Rule 4D(4), M.R.Civ.P. (other service), and Rule
4D(5)(a)(iii), M.R.Civ.P. (dissolution action service by publica-
tion when the person sought to be served cannot be appropriately
served under foregoing subsections of Rule 4D, M.R.Civ.P).
Likewise, any b personam or in rem jurisdiction discussion is
inapplicable in the present situation where threshold service of
process requirements have not been met.
Service may be made by "any other person over the age of 18
not a party to the action." Rule 4D(l)(a), M.R.Civ.P. That
provision is read in conjunction with the requirements of Rule
4C(l), M.R.Civ.P., which states
[u]pon filing of the complaint, the clerk shall forthwith
issue a summons, and shall deliver the summons either to
the sheriff of the county in which the action is filed,
or to the person who is to serve it . . . .
Betty Fonk was neither authorized by law to make service of
process nor was she an appointed agent to receive service of
process for Mickey. &Rule 4D(4), M.R.Civ.P., sunra. She signed
neither a return on summons nor an affidavit asserting that Mickey
could not be found. See Rule 4D(5)(c), M.R.Civ.P. She therefore
did not effectuate valid service of process regardless of whether
7
Mickey picked up the summons and complaint at her request. We
conclude that Betty Fonk's trial testimony is not a valid substi-
tute for the service of process procedures required by Rule 4D,
M.R.Civ.P. To hold otherwise would violate Mickey Fonk's due
process of law rights under the United States and Montana Constitu-
tions. See U.S. Const. amend. 14, and Art. II, § 17, Mont.Const.
Because Mickey was not validly served with process in the
underlying dissolution proceeding, we hold that the District
Court's April 2, 1987, decree is void. Additionally, the court's
June 3, 1992 order ruling that the appellant was in fact served
with the summons and complaint on August 3, 1986, is reversed and
we remand the case for further proceedings consistent with this
opinion.
We concur:
8
September 28, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael V. Sinclair
Coil & Sinclair
125 W. Mendenhall
Bozeman, MT 59715
Robert T. Cummins
Attorney at Law
1 No. Main
Helena, MT 59601
Peggy Probasco
Child Support Enforcement Div., SRS
529 E. Front
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT