Dierkes v. Dierkes
Decision Date | 15 July 1980 |
Docket Number | No. 14083,14083 |
Citation | 165 W.Va. 425,268 S.E.2d 142 |
Court | West Virginia Supreme Court |
Parties | , 17 A.L.R.4th 1146 Donald L. DIERKES, Patricia A. Dierkes, Extrx., etc. v. Beatrice M. DIERKES. |
1. Failure to comply with the mailing requirement of Rule 4(e)(1) of the West Virginia Rules of Civil Procedure on constructive service of process will void an otherwise valid divorce decree.
2. The defense of laches is applicable to suits involving equitable attacks upon divorce decrees which have been rendered void because of failure to comply with provisions of W.Va.R.C.P. 4(e)(1) on constructive service, which require, inter alia, that if the address of a nonresident defendant is known, a copy of the summons and complaint shall be mailed to that address.
Galbraith, Seibert, Kasserman, Farnsworth, Gillenwater & Glauser, Ronald W. Kasserman and George Seibert, Wheeling, for appellee.
McGRAW, Justice:
Appellee Beatrice Dierkes married Donald Dierkes, now deceased, on February 20, 1954. They separated while residing at Powhatan Point, Ohio during March 1967, and pursuant to the separation, the Court of Common Pleas in Belmont County, Ohio, affirmed an "agreement" between the parties, giving custody of the couple's five children to the wife with provision for the support of the children by Donald Dierkes.
Thereafter in October of 1969, the husband sought to dissolve the marriage, by a divorce complaint filed in the Domestic Relations Court of Kanawha County. He also filed an affidavit that the defendant in the suit, Beatrice Dierkes, was a nonresident of the State of West Virginia. Two orders for service on her by publication were granted on October 7, 1969, and April 22, 1970, and pursuant thereto citation was published in the Charleston Daily Mail on December 5, 12, and 19, 1969, and in the Charleston Gazette on April 25, May 2, and May 9, 1970.
No response was made by the wife. A hearing was then held before a special commissioner and pursuant to the testimony of the husband and his corroborating witness, a final divorce decree was entered on July 23, 1970, based on the finding that the couple had lived separate and apart for more than two years.
On August 7, 1970, Donald and Patricia Dierkes were married, and they had one child. Donald was killed in a building accident that occurred May 19, 1976. His second wife, Patricia, was appointed executrix of his estate.
On July 19, 1976, Beatrice Dierkes, the first wife, petitioned the Circuit Court of Kanawha County to set aside the 1970 divorce decree dissolving her marriage to Donald Dierkes. Her motion alleged that:
A hearing was held on the motion defended by Patricia Dierkes, individually and as executrix under the last will and testament of Donald Dierkes. The trial court heard testimony on the issues of whether Beatrice Dierkes had received formal notice of the divorce proceeding, and whether she had actual knowledge thereof so as to be barred by laches from attacking the divorce decree six years later. The court concluded that the evidence showed that
On the issue of laches, the court found that the evidence was "diametrically opposite, equal in weight and credibility, and (did) not preponderate in favor of either party. . . ." Then because the respondent, Patricia Dierkes, failed to meet her burden of proving laches, and because the divorce decree was found void as a matter of law, the motion to set aside the decree was sustained. An order was entered in favor of Beatrice Dierkes. Subsequent to the entry of that order, Patricia Dierkes, the second wife and appellant here, filed a motion to reopen the case for the purpose of hearing additional evidence not available to her at the time of the first hearing; the additional evidence was in the form of testimony going to the issue of whether Beatrice Dierkes had actual knowledge of the divorce proceeding. By order entered August 10, 1977, the court denied the motion to reopen made pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure on the ground that the evidence sought to be introduced would be cumulative and additional. The appellant, Patricia Dierkes, second wife of the deceased, appeals from both the March 7, 1977 order setting aside the 1970 divorce decree, and the August 10, 1977 order denying her motion to reopen the case. We affirm.
Constructive process under W.Va. R.C.P. 4(e)(1) is available to the plaintiff in a divorce proceeding by virtue of W.Va. R.C.P. 81. The manner in which constructive service is to be made is prescribed in Rule 4(e)(1) which provides in pertinent part:
(Our emphasis).
Our research reveals that this Court has never reached the precise issue involved in the instant case; i. e., whether failure to comply with the mailing aspect of Rule 4(e)(1) on constructive service of process will void an otherwise valid divorce decree. Most courts faced with the question hold that strict compliance with constructive service statutes is essential to give a court jurisdiction to grant a divorce. And when the rule or statute requires that a copy of the summons and complaint be mailed to the out-of-state defendant in addition to publication, and the mailing requirement is not complied with, the service is void. See, 24 Am.Jur.2d Divorce and Separation, §§ 284, 286 (1966). See also, Polansky v. Richardson, 351 F.Supp. 1066 (E.D.N.Y.1972); Crook v. Crook, 19 Ariz. 448, 170 P. 280 (1918); Warren v. Warren, 4 Terry 399, 43 Del. 399, 47 A.2d 795 (1946); Mayo v. Mayo, Fla.App., 344 So.2d 933 (1977); Chafin v. Burroughs, 224 Ga. 774, 164 S.E.2d 826 (1968); Strode v. Strode, 6 Idaho 67, 52 P. 161 (1898); Arnold v. Arnold, 60 Mich.App. 89, 230 N.W.2d 280 (1975); and Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201 (1945), cert. denied, 327 U.S. 782, 66...
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