Raymond v. Raymond

• Decision Date: 01 February 2001
• Docket Number: 00-751
• Citation: 36 S.W.3d 733
• Parties: DIANE M. RAYMOND, APPELLANT, V. DANIEL A. RAYMOND, APPELLEE. 00-751 Supreme Court of Arkansas Opinion Delivered:
• Court: Arkansas Supreme Court

DIANE M. RAYMOND, APPELLANT,

V.

DANIEL A. RAYMOND, APPELLEE

00-751

Supreme Court of Arkansas

Opinion Delivered: 2-1-01

APPEAL FROM THE CHANCERY COURT OF WASHINGTON COUNTY, ARKANSAS, NO. E-96-2119; HONORABLE THOMAS F. BUTT, CHANCERY JUDGE REVERSED AND DISMISSED.

TOM GLAZE, Associate Justice

This appeal involves a divorce decree entered in appellee Daniel A. Raymond's favor against his wife, Diane M. Raymond. Daniel filed a divorce complaint on December 30, 1996, but it is undisputed that Diane was never served with process, nor did Diane ever receive a copy of the complaint. Instead, both parties signed what was designated a "conditional reconciliation agreement" which was filed with the chancery clerk on April 2, 1997 - 93 days after Daniel filed his complaint. The agreement provided it would "shortly" be filed as an attachment to the divorce complaint.

From the wording of the agreement, Diane agreed, among other things, not to partake of alcoholic beverages or illegal drugs, and she would undergo counseling and treatment. The parties further agreed that, by entering into the agreement and resuming theircohabitation, they were pursuing a trial reconciliation. In consideration of Diane's compliance with discontinuing her abuse of alcohol and drugs, during a six-month period, the agreement recited that Daniel would dismiss his divorce complaint. If Diane failed to comply, she in turn agreed to "accept a divorce, leave the house with her car, personal belongings, and $20,000.00," and not make any claims to any real and personal properties, marital or non-marital.

The parties' reconciliation efforts failed. They subsequently executed a property settlement agreement, and Diane signed what was labeled a "waiver and entry of appearance"; however, this pleading did not have her waive service of process, nor did she acknowledge receipt of Daniel's divorce complaint. Rather, the pleading simply acknowledged receipt of the parties' property settlement agreement and reflected her waiver of the right to appear without further notice. These papers were filed along with a divorce decree on May 12, 1997, or 133 days after Daniel filed his complaint. It is undisputed that (1) Diane was not represented by counsel prior to the filing of the decree, (2) she never received a copy of the divorce complaint, and (3) she never specifically waived service of process either when the complaint was filed or before the divorce decree was entered.

Diane later obtained counsel, and on March 5, 1999, she petitioned to the court to set aside the May 12, 1997, divorce decree. While she acknowledged having signed the conditional reconciliation agreement and a property settlement agreement, Diane alleged that, during that time, she was dependent upon Daniel for guidance and advice because she suffered from alcoholism. Her paramount contention for setting aside the May 12, 1997, decree was that the chancery court granting the decree had not acquired jurisdiction to do so because Daniel had never perfected service of process on Diane, nor did he deliver to her a copy of his complaint.

In support of her contention, she largely relied on Ark. R. Civ. P. 4(a) and (i), which govern service of process. Rule 4(a) provides that "[u]pon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person appointed by the court or authorized by law to serve process." Rule 4(i) further provides the following:

If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. (Emphasis added.)

As alluded to above, it is uncontroverted that Daniel never perfected service of process on Diane within 120 days after filing his complaint, nor did he serve a copy of his complaint on her or have her sign an entry of appearance whereby she waived service of summons within that required 120-day period. These failures, Diane asserted, rendered the chancery court without authority to hear or decide the parties' divorce. The chancellor disagreed, and specifically found that Diane's signature on the parties' so-called conditional reconciliation agreement constituted an entry of appearance, and that, by signing it, Diane submitted herself to the court's jurisdiction. Since the reconciliation agreement had been signed and entered 93 days (or within the mandatory 120-day period) from the filing of Daniel's complaint, the chancellor held Daniel had complied with Rule 4(i). Diane appealed the chancellor's decision to the court of appeals, which affirmed. See Raymondav. Raymond, 70 Ark. App. 372, 19 S.W.3d 52 (2000). The court of appeals, in a 4-2 decision, agreed with the chancellor's reasoning, and, citing cases decided prior to Rule 4(i)'s existence, the appellate court held the language in the parties' reconciliation agreement signed by Diane amounted to a "substantial step" which constituted her waiver and entry of appearance without reserving her objection to the trial court's lack of jurisdiction. We disagree and reverse and dismiss the chancellor's divorce decree.

Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982) (citing Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1972), and Southern Kansas Stage Lines Co. v. Holt, 192 Ark. 165, 90 S.W.2d 473 (1936)). Moreover, a summons is necessary to satisfy due process requirements. Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996). It is also mandatory under Arkansas law that service of process must be made within 120 days after the filing of the complaint unless there is a motion to extend, and if service is not obtained within the 120-day period and no such motion is made, dismissal is required upon motion or upon the court's own initiative. See Ark. R. Civ. P. 4(i); Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (under Rule 4(i), the trial court's dismissal of the case for failure to make service of summons was mandatory); see also Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990).

Our case law is equally well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Carruthav. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531(1989), and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). In Carruth, this court held that the same reasoning applies to service requirements imposed by court rules, and that proceedings conducted where the attempted service was invalid renders judgments arising therefrom void ab initio. The Carruth court, quoting from Tucker v. Johnson, supra, further held that actual knowledge of a proceeding does not validate defective process. Carruth, 324 Ark. at 375. Stated in different terms, the general rule is that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court's power is void. Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995).

The foregoing established legal principles require this court to hold the chancellor's decree awarding Daniel a divorce to be void because, as pointed out above, Diane was indisputably never served with a copy of Daniel's complaint or summons; neither did Daniel file a motion to extend the time or obtain a waiver and entry of appearance whereby Diane waived service of summons or process. While Daniel argues Diane had been made aware that Daniel had filed a divorce, this limited actual knowledge was insufficient for the lower court to acquire jurisdiction over Diane. See Tucker, supra.

In holding as we do, we reject Daniel's argument that Diane's signing the parties' reconciliation agreement, filed 93 days after Daniel's complaint, complied with the 120-day time period requiredby Rule 4(i). Daniel submits that there is no specific requirement for how a party may enter their appearance and that any action of a defendant showing an intention to enter an appearance, whether by formal writing or informal parol action is a voluntary appearance binding on him. For this proposition, he relies on Robinson v. Bossinger, 195 Ark. 445, 112 S.W.2d 637 (1938), and the following language therein:

A party who answers, consents to a continuance, goes to trial, takes an appeal, or does any substantial act in a cause, although he has not been served with summons, is deemed to have entered his appearance unless he objects and preserves his protest to the jurisdiction of his person.

In addition to the Robinson case, Daniel also cites Kirk v. Bonner, 186 Ark. 1063, 57 S.W.2d 802 (1930), for the rule that a voluntary appearance in court may be by formal writing, but in Kirk, the defendant executed a proper pleading waiving the issuance of summons and entering his appearance. At the time of both Robinson and Kirk, however, the Rules of Civil Procedure had not yet been promulgated. In other words, Rule 4(i) was not in effect and therefore not argued in those cases. Likewise, this court was not faced with the due process or jurisdictional issues considered in our later cases, discussed above, where this court held that (1) a valid service of process is necessary to give a court jurisdiction over a defendant; (2) actual knowledge of a proceeding does not validate a defective process; (3) if service of summons is not made upon a defendant within 120 days after filing the complaint, the...