Department of Revenue v. Wright, 2D01-1815.

• Decision Date: 15 March 2002
• Docket Number: No. 2D01-1815.,2D01-1815.
• Parties: DEPARTMENT OF REVENUE, o/b/o Vicki L. WILLIAMS, Appellant, v. David M. WRIGHT, Appellee.
• Court: Florida District Court of Appeals

813 So.2d 989

DEPARTMENT OF REVENUE, o/b/o Vicki L. WILLIAMS, Appellant, v. David M. WRIGHT, Appellee.

No. 2D01-1815.

District Court of Appeal of Florida, Second District.

March 15, 2002.

Rehearing Denied April 26, 2002.

Robert A. Butterworth, Attorney General, Tallahassee, and Jon J. Johnson, Assistant Attorney General, and William H. Branch, Assistant Attorney General, Tampa

(substituted as counsel of record), for Appellant.

Mark A. Neumaier, Tampa, for Appellee.

THREADGILL, EDWARD F., Senior Judge.

The Department of Revenue (DOR) appeals from two orders that together vacate a final order of support entered on January 28, 1987. We reverse the trial court's original order of December 11, 2000 (the original order), and the order on motion to clarify and remand for the reinstatement of the January 28, 1987, final order of support.

In August 1986, the Department of Health and Rehabilitative Services (HRS), as predecessor to the DOR, filed a petition for support against David E. Wright on behalf of Vicki Williams for child support of a minor in Williams' care and custody. Wright was served by substitute service on his mother at her residence at 1211 Scott Street in Tampa. Wright was noticed for final hearing at the same address, and a clerk's default was entered based upon Wright's failure to file a response to the petition. The trial court entered a final order of support in January 1987. In January 1988, HRS filed a motion to modify final order of support. After notice was sent to all parties, the court granted the motion, correcting Wright's name in the style of the case from David E. Wright to David M. Wright.

The DOR filed a motion for contempt in July 1994 for Wright's failure to pay support. David M. Wright was served with this motion and noticed for hearing. Wright appeared at the hearing on December 16, 1994, and was found to be in willful contempt of court and was ordered to pay a purge of $500. Wright sought and received an extension of the time to pay the purge amount, and he began paying child support.

In October 1999, the DOR filed a second motion for contempt. In response, Wright filed, in a separate case which was later consolidated with the DOR's action, a "Petition to Vacate and Set Aside Final Order of Support and Related Orders." Wright argued that the court did not have personal jurisdiction over the cause due to improper service of the original support petition. He contended that he did not live with his mother when substitute service was made upon her. He further alleged that his mother never provided him with a copy of the petition.

At the hearing on Wright's motion, Vicki Williams, the child's mother, testified that Wright lived with his mother on Scott Street in 1986. Wright and his mother testified and denied that he lived on Scott Street in 1986. Wright testified that he had lived with his mother on Scott Street before he graduated from high school. His mother testified, however, that Wright never lived with her on Scott Street. In addition, Wright's answers were evasive, and he was unable to give an address of exactly where he lived at the time of substitute service.

Wright also argued at the hearing that service was ineffective because the original summons listed Wright's incorrect middle initial. The DOR argued that Wright waived his challenge by seeking affirmative relief in requesting an extension of time to pay the purge amount. The trial court pointed out that proper service on Wright occurred on July 22, 1994, and that Wright made his request for affirmative relief after the proper service.

In its original order, the trial court found that substitute service was ineffective because the original summons contained the incorrect middle initial. In its order on motion to clarify, the trial court stated that its original order effectively vacated the 1987 final order of support and found that service was not effected on Wright until he was served with the motion for contempt on July 22, 1994. The trial court abolished any support ordered before July 22, 1994. The DOR appealed both orders.¹

The DOR first challenges the trial court's determination that substitute service of the summons was ineffective because it reflected an incorrect middle initial for Wright. Section 48.031(1), Florida Statutes (1985), provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

The parties agreed at the hearing on Wright's motion that Wright's mother was served at 1211 Scott Street.

"Statutes which govern substituted service of process are to be strictly construed and also, they must be strictly complied with." Aero Costa Rica, Inc., v. Dispatch Servs., Inc., 710 So.2d 218, 219 (Fla. 3d DCA 1998). In Aero Costa Rica, substitute service of a witness subpoena on another employee of the witness's corporation did not meet the requirements of section 48.031. Here, section 48.031(1) was followed in that Wright's mother, who lived at 1211 Scott Street, was served.

At the hearing, the trial court asked whether the DOR had an affirmative obligation to re-serve the petition on the correctly named party in a case such as this where there was substitute service and a default was entered. The DOR contended that it did not have such an affirmative duty by virtue of an incorrect middle initial, but neither party had any case law to cite on the point. Rather than finding that a statutory requirement had not been met, the trial court held that because Wright's middle initial was incorrect on the...