Flynn v. Al-Amir

• Decision Date: 16 December 2002
• Docket Number: No. 2000-494-Appeal.,2000-494-Appeal.
• Citation: Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002)
• Parties: Keri Ellen FLYNN v. Nicholas AL-AMIR.
• Court: Rhode Island Supreme Court

811 A.2d 1146

Keri Ellen FLYNN v. Nicholas AL-AMIR.

No. 2000-494-Appeal.

Supreme Court of Rhode Island.

December 16, 2002.

Present; WILLIAMS, C.J., LEDERBERG, FLANDERS, and GOLDBERG, JJ.

KeriEllen Lohrman, for Plaintiff.

Edward R. McCormick, III, Providence, for defendant.

OPINION

PER CURIAM.

This appeal questions whether service of process by certified mail was adequate to support a default judgment for divorce. The defendant, Nicholas Al-Amir, appeals from an order denying his motion to vacate the judgment pursuant to Rule 60(b)(4) of the Family Court Rules of Procedure for Domestic Relations. He contends that the 1990 final judgment of divorce from his alleged common-law wife, the plaintiff Keri Ellen Flynn, was void because he never received proper service of process. The defendant also argues that the motion justice erred in refusing to consider his sworn affidavit when ruling on his motion to vacate. A single justice of this Court ordered the parties to show cause why the appeal should not be summarily decided.¹ Because they have not done so, we proceed to resolve the appeal at this time.

Given the uncontradicted evidence that in 1990 defendant was residing in Massachusetts with his mother when she accepted service of process for him via certified mail in this divorce action, and given the uncontradicted evidence that defendant possessed actual knowledge of the divorce action soon after his mother accepted service on his behalf, we affirm and deny the appeal.

Facts and Travel

In November 1989, plaintiff filed a complaint for divorce. Apparently, plaintiff asserted that she and defendant had entered into a common-law marriage.² In accordance with Rule 4(e) of the Family Court Rules of Procedure for Domestic Relations, plaintiff arranged for service of process by mailing the summons and complaint to defendant's last-known "address" by certified mail. Under Rule 4(e)(1), persons living outside of Rhode Island can be served with process by registered or certified mail, return receipt requested. The plaintiff believed that defendant's last-known address was 132 Peterson Street, North Attleboro, Massachusetts. In January, 1990, defendant's mother received the certified mailing of the summons and complaint at that address and signed for it on behalf of her son. When plaintiff filed her divorce complaint, she knew that defendant had married a woman in California. Nevertheless, she still believed that defendant was living at his mother's Massachusetts address when she caused the summons and complaint to be mailed to him there. She based her belief on the fact that defendant called and visited with her in Rhode Island during that period.

The defendant did not answer the divorce complaint and did not appear at the Family Court proceedings in April 1990. After entering an interlocutory decision granting the divorce, the court ultimately entered final judgment on July 26, 1990. The divorce decree awarded plaintiff child support for the minor child of the marriage. Thereafter defendant made some child support payments as provided for in the decree, but nevertheless he was many thousands of dollars in arrears when, almost ten years after the divorce judgment entered, he attempted to vacate it.

Thus, on May 7, 2000, defendant filed a motion in the Family Court to vacate the judgment pursuant to Rule 60(b)(4). With the motion, defendant submitted affidavits from himself and his mother. In defendant's affidavit, he attacked the factual grounds for his purported common-law marriage to plaintiff, asserting that in 1990 he merely had rented an apartment to her in Cumberland and that he had dated her only casually.

The Family Court held a hearing on defendant's motion to vacate at which defendant's counsel asserted that the final judgment of divorce was void for lack of personal and subject matter jurisdiction, because defendant, an out-of-state resident, had not been properly served with the summons and complaint. He argued that service of process by certified mail on his mother was not proper. The defendant's counsel also attempted to introduce into evidence certain affidavits from defendant and his mother in support of the motion to vacate the judgment of divorce. The plaintiff objected because she wanted the opportunity to cross-examine these witnesses, yet neither defendant nor his mother was physically present for the hearing. The defendant's counsel asserted that, in order to support his motion to vacate the judgment, it was essential for the court to allow him to introduce the affidavits into evidence. But the court refused to do so; instead, it sustained plaintiff's objection and excluded the affidavits from its consideration on the ground that the affidavits were hearsay and that plaintiff would not have an opportunity for cross-examination if it allowed the affidavits into evidence. The plaintiff, however, testified at the hearing that in 1990 defendant admitted to her that he had received the divorce papers in this case and that, thereafter, he had asked her to drop her complaint. Shetestified that defendant told her that "he would take care of both myself and the child very well, and that I didn't have to go ahead and go to court * * *."

Issuing a written decision, the court denied defendant's motion to vacate. The motion justice found that defendant possessed the necessary contacts with the state for the Family Court to exercise personal jurisdiction over him — noting, as an example, defendant's collection of rents from apartments he owned in the state. He also ruled that defendant failed to prove that the final judgment of divorce was void because the service of process was invalid. Referring to the 1990 affidavit of plaintiff's attorney that plaintiff had filed in support of entering the judgment — stating that he had accomplished service of process by certified mail with a return receipt requested — the motion justice ruled that defendant had not established the inapplicability of the one-year limitation on filing motions to vacate judgments under Rule 60(b).

Analysis

On appeal, defendant argues that a void judgment can be vacated at any time. He states that the rules for service of process must be strictly construed. Because he was not served with a copy of the summons and complaint, he argues, the Family Court lacked personal and subject matter jurisdiction, and the divorce judgment was void. He also suggests that the hearing justice erred in refusing to consider the affidavits that he submitted in support of his motion to vacate the judgment. He maintains that it was error to allow plaintiff in the course of her testimony to rely on defendant's statements without allowing defendant to submit his own affidavits. Also, defendant insists that his affidavit should have been admitted under the "catch-all" exception of Rule 803(24) of the Rhode Island Rules of Evidence.

"The denial of a motion to vacate or modify a judgment is within the sound discretion of the trial justice and will not be reversed on appeal absent a showing of abuse of discretion orother error of law." Webster v. Perrotta, 774 A.2d 68, 75 (R.I.2001). A motion to vacate under Rule 60(b) must be made within a reasonable time and not more than one year after the judgment "for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence * * *; [and] (3) fraud * * *." The other grounds specified in the rule — "(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged * * *; or (6) any other reason justifying relief from the operation of the judgment," id. — are not subject to the rule's one-year filing deadline. An independent action to vacate a judgment, moreover, may be filed more than one year after entry of judgment. Allstate Insurance Co. v. Lombardi, 773 A.2d 864, 869 (R.I.2001). The defendant's filing in this case was clearly marked "Motion to Vacate" and he submitted it on the grounds specified in Rule 60(b)(4) ("the judgment is void"). A motion to vacate an allegedly void judgment is not subject to the one-year period set forth in Rule 60(b).³See May v. Penn T.V. & Furniture Co., 686 A.2d 95, 99 (R.I.1996); Leonard v. Mattos, 509 A.2d 992, 994 (R.I.1986); Reynaud v. Koszela, 473 A.2d 281, 285 (R.I.1984); Lamarche v. Lamarche, 115 R.I. 472, 475, 348 A.2d 22, 23 (1975). In Lamarche and its progeny, the key issue was whether service of process or notice of the summons and complaint was adequate to support the judgment. The issue for contention in this case also focuses on whether plaintiff properly accomplished service of process. Therefore, the one-year time limit of Rule 60(b) did not bar defendant's motion to vacate, and the court did not err in refusing to treat the motion as time barred.

Service of process in this action occurred in 1990 via certified mail to a Massachusetts address where plaintiff believed that defendant was residing with his mother. Rule 4(e)(1) states that when an individual is subject to the jurisdiction of Rhode Island courts, service of process may be made on an individual outside of Rhode Island either by personal service or "by mailing a copy of the summons and complaint to the individual by registered or certified mail, return receipt requested * * *." At a minimum, due process requires that notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."⁴ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). "Service by registered or certified mail should be regarded as equally efficacious [as personal service] from a constitutional perspective to invoke personal jurisdiction since the return receipt normally guarantees that the defendant or someone related or associated with him has received the process, although it is obviously not...