dissenting. The majority today holds that the Washington County Chancery Court was without jurisdiction to enter a decree of divorce in the action filed by Mr. Raymond because he failed to perfect service upon Ms. Raymond within 120 days of filing the complaint for divorce. I must dissent because the majority fails to recognize that service of process may be waived by the defendant, as Ms. Raymond did in this case.
“Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution.” Meeks v. Stevens, 301 Ark. 464, 466, 785 S.W.2d 18 (1990). As the majority points out, Rule 4(i) mandates that service be made within 120 days of the filing of the complaint, or the action must be dismissed as to any defendant not served. Ark. R. Civ. P. 4(i). Service of process is a jurisdictional issue, the failure of which deprives the trial court of jurisdiction over the person of the defendant. See Sides v. Kirchoff, 316 Ark. 680, 681, 874 S.W.2d 373 (1994).
The majority, however, fails to recognize that personal jurisdiction is a defense that can be waived by the defendant. Arkansas Dep’t of Human Servs. v. Farris, 309 Ark. 575, 578, 832 S.W.2d 482 (1992). Rules 12(b)(5) and 12(h)(1) clearly set forth the procedure for raising an insufficiency-of-service-of-process defense. Sublett v. Hipps, 330 Ark. 58, 63, 952 S.W.2d 140 (1997). Where a defendant believes that the trial court lacks personal jurisdiction over her because of insufficient service of process, she may take one of three actions to preserve her defense: (1) she may file a motion to dismiss the complaint against her for failure to obtain service of process; (2) she may file a responsive pleading in which she asserts the defense of insufficient service; or (3) she may simply choose not to appear or to contest jurisdiction. Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 394, 985 S.W.2d 742 (1999); Arkansas DHS. v. Farris, supra; Ark. R. Civ. P. 12. If a defendant does appear without first filing a motion to dismiss for insufficient service or asserting this defense in her first responsive pleading, she waives any defense based upon the insufficiency of the service of process. Hamm v. OCSE, supra. See also Wallace v. Hale, 341 Ark. 898, 20 S.W.3d 392 (2000); Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark.. 136, 141, 865 S.W.2d 643 (1993); Ark. R. Civ. P. 12(h).
It is undisputed in this action that Mr. Raymond failed to perfect service upon Ms. Raymond within 120 days of filing the complaint for divorce. He argues, however, that Ms. Raymond waived any defense based upon insufficient service when she entered an appearance in the divorce action by signing the conditional reconciliation agreement. The majority summarily dismisses Mr. Raymond’s argument because he cited only pre-rule cases to support his argument and did not take into account due process concerns. Mr. Raymond’s argument should not be so quickly dismissed. As noted above, by entering an appearance in a case, a defendant waives her defense of insufficient service of process. Hamm v. OCSE, supra; Farm Bureau v. Campbell, supra. A waiver of service ameliorates any due process concerns. See Stevens v. Meeks, supra. The question, therefore, is whether Ms. Raymond entered an appearance in the divorce action when she entered into the conditional reconciliation agreement. I believe she did.
An overt action on the part of the defendant, other than objecting to jurisdiction, which recognizes the case as in court, is an appearance. Norsworthy v. Norsworthy, 289 Ark. 479, 487, 713 S.W.2d 451 (1986); Divilbliss v. Suchor, 311 Ark. 8, 15-16, 841 S.W.2d 600 (1992). If the defendant engages in any action that is not purely defensive prior to asserting the insufficiency of service, an appearance is entered and the defense is waived. Wallace v. Hale, supra. A purely defensive action is an action such as engaging in discovery. Farm Bureau v. Campbell, supra. However, a formal pleading is not necessary to effectuate an “appearance.” Divilbliss v. Suchor, supra. See, e.g., Farm Bureau v. Campbell, supra (a request for affirmative relief); Arkansas DHS v. Farris, supra (a motion requesting appointment of counsel and a response to a motion to intervene by a third party); Norsworthy v. Norsworthy, supra (a motion to stay proceedings).
In the instant case, Ms. Raymond signed a document entitled “Conditional Reconciliation Agreement.” This agreement was in the form of a legal document prepared for filing. At the head of the agreement is the style of the pending divorce action, containing the name of the court, the style of the case indicating the plaintiff and the defendant, and the docket number assigned to the case. The agreement itself clearly states that it is to be filed as an attachment to the complaint for divorce in the Chancery Court of Washington County, Arkansas. The agreement further provides that, if Ms. Raymond successfully completes an alcohol rehabilitation program and abstains from alcohol for a period of six months, Mr. Raymond would dismiss the pending divorce complaint in the Washington County Circuit Court.
There can be no doubt that by signing the conditional reconciliation agreement, Ms. Raymond knew she was entering into an agreement within the confines of the pending divorce action in the Washington County Chancery Court. As the majority states, actual knowledge of a pending action does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 s.W.2d 944 (1996). However, Ms. Raymond’s involvement in this case went beyond mere knowledge of its pendency. She committed an overt act by signing the conditional reconciliation agreement to be filed with the court. Signing this agreement was not a purely defensive action on the part of Ms. Raymond. To the contrary, by entering into the agreement, Ms. Raymond committed to a course of action in the divorce proceedings, determining the parameters under which the divorce would proceed from that point forward. By entering into this agreement, and making it a part of the divorce proceeding, Ms. Raymond entered an appearance and submitted herself to the court’s jurisdiction, thereby waiving any defense of insufficient service of process.
In summary, the majority’s interpretation of ARCP Rule 4 in this case shifts the onus of Rule 12, whereby a defense of insufficient service of process must be specifically asserted to be preserved. The majority’s opinion instead holds that insufficient service of process is preserved unless specifically waived. In so doing, it effectively abolishes our line of precedent to the contrary. For this reason, I must respectfully dissent.
Brown and Thornton, JJL, join in this dissent.