Fonk v. Ulsher, 93-140
| Decision Date | 28 September 1993 |
| Docket Number | No. 93-140,93-140 |
| Citation | 860 P.2d 145,50 St.Rep. 1112,260 Mont. 379 |
| Parties | Mickey D. FONK, Petitioner and Appellant, v. Mavanee J. ULSHER, Respondent and Respondent, and J.C.F. and S.J.F., Minor Children, and Montana Department of Social and Rehabilitation Services, Child Support Enforcement Division, Real Party in Interest. |
| Court | Montana Supreme Court |
Michael V. Sinclair, Coil & Sinclair, Bozeman, for petitioner and appellant.
Robert T. Cummins, Helena, Peggy Probasco, CSED, Butte, for respondent and respondent.
Petitioner Mickey Fonk brought this action to recover monies involuntarily paid for child support, to determine paternity and to question service of process on the basis that he had not been personally served in the underlying dissolution proceeding. The District Court for the First Judicial District, Lewis and Clark County, dismissed Fonk's service of process claim and entered final judgment. Fonk appeals that portion of the judgment which denies his motion to quash service of process. We reverse the District Court.
The sole issue on appeal is whether service of process is valid when a process server leaves a summons and petition with a family member at the residence of the person sought to be served.
Mickey Fonk (Mickey) and Mavanee Ulsher (Mavanee) were married December 1, 1982, at Helena, Montana. Two children, J.C.F. and S.J.F., were born during the marriage. The couple separated, and Mavanee petitioned for dissolution of marriage on July 18, 1986, in the District Court for the First Judicial District, Lewis and Clark County.
On August 3, 1986, a Gallatin County deputy sheriff left the summons and complaint in the dissolution proceeding with Betty Fonk, Mickey's mother, at her home in which Mickey then resided. Mickey was not home at the time. In his return on service, the deputy erroneously stated that he had personally served Mickey. Betty Fonk later stated that she did not know whether Mickey had received the service papers.
On April 2, 1987, the District Court entered a default decree dissolving the marriage of Mavanee Ulsher and Mickey Fonk, distributing their marital assets between them, and ordering Mickey to pay child support of $75 per month for each of the two minor children. Mavanee was present at the proceeding; Mickey was not.
Mavanee, who received government Aid to Families with Dependent Children (AFDC), assigned her AFDC rights to the Department of Social and Rehabilitation Services, Child Support Enforcement Division (CSED). CSED thereafter sought enforcement of its assigned child support rights by intercepting Mickey's tax refunds and garnishing his income. Mickey stated that he first became aware of the dissolution and his child support obligations indirectly during 1990 when he sought legal advice regarding his 1989 income tax returns.
On June 14, 1991, Mickey filed this action alleging that he was not the natural father of the two minor children and requesting that the court order the State of Montana, Department of Social and Rehabilitation Services and Mavanee to reimburse him for all involuntarily-paid child support. Mickey also claimed that he had not been properly served in the underlying dissolution proceeding and that Mavanee committed fraud upon the court by representing that he had fathered the two children.
On July 18, 1991, Mavanee filed her response to the paternity action and included a cross-petition for increased child support. She moved for dismissal of Mickey's petition, arguing that the paternity issue was res judicata and that his petition was a collateral attack on the default judgment entered in the dissolution action.
After an April 3, 1992, hearing on the service of process issue, the court held [I]t became apparent that the Sheriff of Gallatin County had not, in fact, ever served Mickey Fonk with [the] papers. However, it does appear to this Court that Mickey was personally served with [the] papers. The law does not require that the service be made by the Sheriff's office.
Testifying in this matter was Mickey's mother, Betty. She indicated that when the Sheriff came to her house on August 3, 1986, her son was not home. The Sheriff left the papers with her. Her son came home later in the day and she indicates that she gave the papers to Mickey. She indicates that this occurred by her directing Mickey's attention to the papers that were lying on a table. She notes that the next day the papers were gone so that "he must've picked them up." The testimony of Mrs. Fonk was under oath. This Court considers her testimony to be the proof of service in this matter. Without the testimony of Mickey's mother, the Court would have to hold that he was not served with process.
Prior to the final adjudication of the case, Mickey prematurely appealed the District Court's ruling and this Court dismissed the appeal without prejudice on November 20, 1992. 255 Mont. 538, 843 P.2d 798. The District Court entered final judgment as to Mickey's service of process claims pursuant to Rule 54(b), M.R.Civ.P., on February 16, 1993; Mickey now appeals that service of process ruling.
Was there valid service of process when the Gallatin County deputy left the dissolution proceeding petition and summons with a family member at Mickey's residence?
Mickey contends that service of process was invalid because he was not personally served as required by Rule 4D(2)(a), M.R.Civ.P. Mavanee contends that the service was valid because the District Court found that Betty Fonk's testimony pertaining to Mickey's receipt of the documents was credible evidence establishing personal service.
Our standard of review concerning a district court's conclusions of law is to determine whether the court's interpretation of the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. Normally, the burden of proof necessary to overcome statements and recitals in a sheriff's return must be clear, unequivocal, and convincing. Sewell v. Beatrice Foods Co. (1965), 145 Mont. 337, 341-42, 400 P.2d 892, 894. Here, the record reflects that the deputy's return on summons was erroneous because it stated that the deputy personally served Mickey J. Fonk. There being no dispute about this fact, we examine whether service was valid.
The nature of service is twofold: it serves notice to a party that litigation is pending, and it vests a court with jurisdiction. Improper service undermines a court's jurisdiction, and a default judgment subsequently entered is thereby void. See Sink v. Squire (1989), ...
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