Evans v. Evans

• Decision Date: 15 July 2021
• Docket Number: Record No. 201108
• Court: Virginia Supreme Court
• Parties: Erin Marie Coster EVANS v. James August EVANS, Jr.

300 Va. 134

860 S.E.2d 381

Erin Marie Coster EVANS

v.James August EVANS, Jr.

Record No. 201108

Supreme Court of Virginia.

JULY 15, 2021

Christopher T. Holinger, Virginia Beach (Mary T. Morgan ; Golightly Mulligan & Morgan, on briefs), for appellant.

James A. Evans, Virginia Beach, for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE D. ARTHUR KELSEY

The circuit court vacated as void ab initio a portion of an earlier divorce decree that had ordered a father to pay child support because the court issuing the support award never acquired personal jurisdiction over the father. The Court of Appeals affirmed the circuit court's vacatur decision, as do we.

I.

Erin Marie Coster Evans and James August Evans, Jr., were married in Virginia in 1999. After having three children, the parties separated in 2004. At the time of separation, the marital home was in Virginia Beach. In 2005, the parties executed a property settlement agreement in Virginia Beach that contained a provision requiring Mr. Evans to pay child support in the amount of $1,000 per month, beginning on July 1, 2005. At some point during the parties’ separation, Ms. Evans moved to Martinsville, the county seat of Henry County, Virginia.

In December 2005, Ms. Evans filed for divorce in the Henry County Circuit Court. The complaint stated that Ms. Evans's last contact with Mr. Evans was in November 2005. She did not state whether the contact was in person or by mail, phone, email, or otherwise. The complaint identified Mr. Evans's "last known place of abode" as Virginia Beach. J.A. at 2. Ms. Evans stated that her current residence was in Henry County. Seeking an order of publication, Ms. Evans filed an affidavit stating that Mr. Evans could not be found and that she had used due diligence to locate him. In a later deposition submitted to the divorce court, Ms. Evans said that she had used her "best efforts to try to locate" him, but the only specific effort that she mentioned was calling his family members. Id. at 23-24. Ms. Evans did not specifically allege, however, that Mr. Evans had been purposefully evading service of process or had absconded from the jurisdiction to avoid being served by her.

Pursuant to Code § 8.01-316(A)(1)(b), the clerk of court issued an order of publication. See Code § 8.01-316(A)(3) (authorizing the clerk to issue the order under subsection (A)(1)). According to the terms of the order, the clerk posted a notice of the civil action on the front door of the courthouse for the Henry County Circuit Court and published a notice in a local newspaper, the Martinsville Bulletin , for four weeks. The order included a space for certifying that it had been "mailed to the defendant." J.A. at 18. Because no mailing address had been provided, the space remained blank.¹ Nothing in the record suggests that Mr. Evans or any of his family members lived in Henry County. Nor is there any suggestion that he had any reason to be at the courthouse of the Henry County Circuit Court.

The notice appeared in the Martinsville Bulletin on January 5, 12, 19, and 26, 2006. The notice advised Mr. Evans to appear in court by February 24, 2006. Mr. Evans never made an appearance in response to this publication notice. On March 16, 2006, the divorce court entered a final divorce decree, which stated that the "Court doth Ratify, Confirm, Approve and Incorporate" the parties’ 2005 property settlement agreement. Id. at 30. Consistent with the parties’ agreement, the divorce court ordered Mr. Evans to pay child support in the amount of $1,000 per month. The court noted that process had been served by order of publication and that Mr. Evans had "otherwise failed to answer the pleadings or appear in the proceedings." Id. at 29.

In 2019, Mr. Evans filed a "Motion to Reopen Case on Special Appearance and to Grant Relief." Id. at 46-47.² Because notice had been by order of publication, Mr. Evans argued, the divorce court had only acquired in rem jurisdiction over the proceeding. Consequently, the divorce court had never obtained personal jurisdiction over him, and thus, the in personam award of child support was void ab initio. Ms. Evans responded that the divorce court had personal jurisdiction over Mr. Evans pursuant to two subsections of the long-arm statute, Code § 8.01-328.1(A)(8) and (A)(9), because he had executed an agreement in Virginia to pay child support to a domiciliary of Virginia, had fathered children in Virginia, and had maintained a matrimonial domicile in Virginia at the time of the parties’ separation.

The circuit court agreed with Mr. Evans and found that the divorce court did not have personal jurisdiction over him when it issued the final divorce decree in 2006. The portion of the final decree ordering child support was thus void ab initio. Ms. Evans appealed to the Court of Appeals, arguing in relevant part that the divorce court had personal jurisdiction under Code § 8.01-328.1(A)(8) and (A)(9) of the long-arm statute. Disagreeing with Ms. Evans, the Court of Appeals held that these provisions did not apply³ and that the divorce court did not have in personam jurisdiction over Mr. Evans when it issued the divorce decree in 2006.

II.

On appeal to us, Ms. Evans again argues that the divorce court had personal jurisdiction over Mr. Evans when it entered the divorce decree, and thus, the court had the authority to enter an in personam award of child support. We disagree.

A.

We begin with a point of agreement between the parties. "It is elementary that one is not bound by a judgment in personam resulting from litigation ... to which he has not been made a party by service of process." McCulley v. Brooks & Co. Gen. Contractors, Inc. , 295 Va. 583, 589, 816 S.E.2d 270 (2018) (quoting Zenith Radio Corp. v. Hazeltine Rsch., Inc. , 395 U.S. 100, 110, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) ). "The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant." Id. (quoting Zenith Radio Corp. , 395 U.S. at 110, 89 S.Ct. 1562 ); see also Vanderbilt v. Vanderbilt , 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957) ; Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 7.1, at 607 (7th ed. 2020).

The parties disagree, however, about the efficacy of Ms. Evans's service by order of publication as a means of obtaining in personam jurisdiction. Before we directly address that contest, we must first survey the various statutory provisions concerning orders of publication. Code § 20-99.2(A) provides that "[i]n any suit for divorce or annulment or affirmation of a marriage, process may be served in any manner authorized under § 8.01-296 or 8.01-320."

Code § 8.01-296 provides the general rules for service of process and allows for notice by an order of publication only if a party cannot effectuate service on the defendant by personal delivery (under subsection 1) or by substituted service (under subsection 2). See Code § 8.01-296(3) (incorporating by reference Code §§ 8.01-316 to -320).

Code § 8.01-320(A) authorizes personal service of process on a "nonresident person outside the Commonwealth." Code § 8.01-320(A) goes on to clarify that when the long-arm statute applies, personal service on an out-of-state defendant "shall have the same effect as personal service on the nonresident within Virginia." But when the long-arm statute does not apply, the out-of-state personal service "shall have the same effect, and no other, as an order of publication." Code § 8.01-320(A).

Code § 20-104 also authorizes the entry of an order of publication upon the filing of an affidavit verifying "that the defendant is not a resident of the Commonwealth of Virginia, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county or city such defendant is, without effect." Code § 20-105.1 adds that "[t]he provisions of Title 8.01 for orders of publication shall be construed as alternatives to the procedures set forth in §§ 20-104 through 20-105 and not in conflict therewith."

B.

Despite the intertwined array of service-of-process statutes in the Commonwealth, two generalities have been accepted by generations of Virginia judges and lawyers.

1.

First, service of process by order of publication — traditionally called constructive service — is the "lowest quality of notice," and thus, "it will usually support only in rem jurisdiction or the in rem aspects of quasi in rem proceedings." Sinclair & Middleditch, supra , § 7.6[A][1], at 623; see, e.g. , Cranford v. Hubbard , 208 Va. 689, 691, 160 S.E.2d 760 (1968) ; Bailey v. Bailey , 172 Va. 18, 21-22, 200 S.E. 622 (1939) ; Morris v. Morris , 4 Va. App. 539, 542, 359 S.E.2d 104 (1987) ; Hayes v. Hayes , 3 Va. App. 499, 502, 351 S.E.2d 590 (1986) ; W. Hamilton Bryson, Virginia Civil Procedure § 3.02[3][d][iii], at 3-26 (5th ed. 2017) ("Process by publication is an inferior method of giving notice of a lawsuit."). Professor Sinclair's "usually" qualification should not be overlooked. Not a few courts in other jurisdictions permit publication notice to effectuate in personam jurisdiction in cases in which a defendant has purposefully avoided service of process or has absconded from the jurisdiction to evade being held accountable in court. See 1 Robert C. Casad et al., Jurisdiction in Civil Actions § 3.01[4][a], at 289-90 & n.104 (4th ed. 2014) (collecting cases).

Although Virginia cases generally treat constructive service by publication as conferring only in rem, not in personam, jurisdiction, see, e.g. , Cranford , 208 Va. at 690-91, 160 S.E.2d 760, Bailey , 172 Va. at 21-22, 200 S.E. 622, we have never specifically addressed whether evidence of willful evasion of service would allow for an exception to that general rule. Whether such an exception does or should exist is a difficult question. Unscrupulous defendants "should not be allowed to hide from and avoid process and thus to defeat the orderly...