Duncan v. Duncan, 88-252
| Decision Date | 11 July 1989 |
| Docket Number | No. 88-252,88-252 |
| Citation | 776 P.2d 758 |
| Parties | Kathryn Elaine DUNCAN, Appellant (Plaintiff), v. Duane J. DUNCAN, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Ann M. Rochelle of Williams, Porter, Day & Neville, P.C., Casper, for appellant.
Richard Peek of Harden, Harden & Peek, Casper, for appellee.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, Retired J.
BROWN, Justice, Retired.
Appellant Kathryn Elaine Duncan (wife) appeals from an order of the district court denying her Motion to Set Aside Judgment modifying a divorce decree as to child custody and support. The sole issue to be decided is whether the Order of Modification was properly entered. We hold that it was not and therefore reverse.
Wife and Duane J. Duncan (husband) were divorced on October 16, 1981. Pursuant to the divorce decree, wife received custody of the two children of the marriage and husband was ordered to pay child support. Following the divorce, wife moved to California for health reasons, leaving the children behind with their maternal grandparents.
After wife's departure, husband filed a petition December 1, 1981, to modify the divorce decree seeking to have custody of the children awarded to him and to require wife to pay child support. Alleging an inability to locate the wife, husband attempted service on wife by publication, filing accompanying affidavits from his attorney. Based on its determination that service on wife was proper, the district court entered a default judgment against wife for her failure to respond to the petition and entered an Order of Modification on February 4, 1982, without the appearance of wife or an attorney representing her. The order awarded husband custody of the children and required wife to pay child support in the amount of $75 per month per child.
Two years later, husband commenced an action under the Uniform Reciprocal Enforcement of Support Act (URESA) in an effort to receive the child support payments pursuant to the Order of Modification. However, wife did not receive notice of either this action or the Order of Modification until 1987, when she was served in California. Immediately after notice of the URESA action and Order of Modification, wife moved to set aside the Order of Modification under W.R.C.P. 55 and 60, arguing, for the purposes of this appeal, (1) that the notice of the Petition for Modification was improper in that husband could have ascertained wife's whereabouts by exercising due diligence, and (2) that the district court lacked in personam jurisdiction over wife when it entered the Order of Modification, and thus could not order to her pay child support.
The district court denied wife's motion on August 1, 1988, finding that service of process was proper on wife and that the court had personal jurisdiction over her such that it was within the court's authority to modify the original divorce decree. This appeal followed.
The issue on appeal concerns the validity of the modification order transferring custody of the children from wife to husband and ordering wife to pay child support. W.S. 20-2-113(a) provides that "[o]n the petition of either of the parents, the court may revise the decree concerning the care, custody, visitation and maintenance of the children as the circumstances of the parents and the benefit of the children requires." While the district court granting the divorce retains continuing jurisdiction to modify the custody and support aspects of the divorce decree, Nicholaus v. Nicholaus, 756 P.2d 1338, 1340 (Wyo.1988), certain procedural steps must be fulfilled before the court can be said to have authority to modify the divorce decree. In this case, two important procedures were violated requiring this court to reverse the district court's order.
It is the rule in Wyoming that personal service is required with regard to orders for child support. Rodgers v. Rodgers, 627 P.2d 1381, 1383-84 (Wyo.1981). There, we stated:
An order for child support cannot issue without in personam jurisdiction.
"Orders for child support, being of the traditional in personam variety, must be based upon personal service within the jurisdiction * * *." Clark on Domestic Relations, § 15.1, p. 489.
* * * * * *
The necessity of in personam jurisdiction to impose the duty to support is recognized in Wyoming's version of the Revised...
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...is true as well of court rules permitting service by publication, and strict and full compliance with them is demanded. Duncan v. Duncan, 776 P.2d 758 (Wyo.1989); In re Lonquest's Estate, 526 In the course of these proceedings, the father, following an attempt to serve the mother by certifi......
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...Company v. Chittim, 387 P.2d 1010, 1011 (Wyo.1964)); see also Oedekoven v. Oedekoven, 475 P.2d 307, 308 (Wyo. 1970); and Duncan v. Duncan, 776 P.2d 758, 760 (Wyo.1989). A judgment entered without proper service of the summons is void and subject to attack directly or collaterally. Crotteau ......
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