Saysavanh v. Saysavanh, 20050803-CA.

Decision Date21 September 2006
Docket NumberNo. 20050803-CA.,20050803-CA.
Citation145 P.3d 1166,2006 UT App 385
PartiesBounthay SAYSAVANH, Petitioner and Appellee, v. Meg McGary SAYSAVANH, Respondent and Appellant.
CourtUtah Court of Appeals

Clayne I. Corey, Clayne I. Corey, PLLC, Sandy, for Appellant.

Randall L. Skeen and Todd R. Mecham, Cook Skeen & Robinson, LLC, Salt Lake City, for Appellee.

Before BENCH, P.J., ORME and THORNE, Jr., JJ.

OPINION

BENCH, Presiding Judge:

¶ 1 Meg McGary Saysavanh (Wife) appeals the trial court's denial of her motion to set aside a default decree of divorce. Wife argues that the trial court lacked jurisdiction because she was not properly served with process according to rule 4 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 4. We reverse and remand.

BACKGROUND

¶ 2 Bounthay Saysavanh (Husband) and Wife separated in February 2001. Wife moved to Mexico while Husband and their minor child remained in Utah. During the summer of 2001, the child visited Wife, and Wife refused to return the child to Husband. To date, Wife and the child remain in Mexico.

¶ 3 In October 2001, Husband filed a petition for divorce. In addition to the petition, Husband filed a motion for an ex parte temporary restraining order and order to show cause. The trial court denied the ex parte motion because the child was not born during the parties' marriage and Husband had not established paternity.

¶ 4 In October 2003, Husband filed an amended petition for divorce and a motion for an order to show cause. About a week later, Husband filed a motion for alternative service pursuant to rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 4(d)(3)(B)(iii). The trial court granted the motion for alternative service, and in November 2003, the court clerk mailed certain documents to Wife in Mexico, requesting a return receipt. These documents included the Amended Verified Petition for Divorce Summons, Motion for Order to Show Cause, and Order to Show Cause. The receipt was later returned to the court clerk unsigned and without any other indication that delivery to Wife had been effected.

¶ 5 Wife asserts that she did not receive any of the documents mailed by the court clerk and was unaware of the order to show cause hearing. Despite Wife's absence at the hearing, the trial court granted Husband's motion for order to show cause. Later, the trial court also entered a default decree of divorce.

¶ 6 Wife contends that she first became aware of the default decree in 2005, after receiving information that the Federal Bureau of Investigation was investigating her for removing the child from the United States. Wife immediately obtained counsel in Utah and filed a motion to set aside the default decree of divorce pursuant to rule 60(b). See Utah R. Civ. P. 60(b). The trial court denied Wife's motion to set aside the default decree and held that Husband "made every effort possible to apprise [Wife] of the divorce proceedings, including strict compliance with Rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure." Wife now appeals.

ISSUE AND STANDARD OF REVIEW1

¶ 7 Wife argues that the trial court erred in denying her rule 60(b) motion to set aside the default decree of divorce because the court lacked jurisdiction. See Utah R. Civ. P. 60(b). A denial of a motion to set aside a judgement is ordinarily reviewed for an abuse of discretion. See Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 8, 2 P.3d 451. "However, when a motion to [set aside] a judgment is based on a claim of lack of jurisdiction, the district court has no discretion." Id. "[T]he propriety of the jurisdictional determination . . . becomes a question of law upon which we do not defer to the district court." Id.

ANALYSIS

¶ 8 "Personal jurisdiction . . . is the court's ability to exercise its power over a person for the purposes of adjudicating his or her rights and liabilities. A lack of [personal jurisdiction] is fatal to a court's authority to decide a case with respect to a particular litigant." State Dep't of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989) (citations omitted).

¶ 9 "For a court to acquire jurisdiction, there must be a proper issuance and service of summons." Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 10, 100 P.3d 1211. "Service of process implements the procedural due process requirement that a defendant be informed of pending legal action and be provided with an opportunity to defend against the action." Carlson v. Bos, 740 P.2d 1269, 1271 (Utah 1987).

¶ 10 Rule 4 of the Utah Rules of Civil Procedure governs service of process, and subsection 4(d)(3) specifically governs service of process in a foreign country. See Utah R. Civ. P. 4(d)(3). In order to determine which part of subsection 4(d)(3) is applicable, we first assess whether there is an internationally agreed means of service in Mexico, "such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Utah R. Civ. P. 4(d)(3)(A). If there exists an internationally agreed means of service between the countries, rule 4(d)(3)(A) is applicable. See id. If there is no internationally agreed means of service, rule 4(d)(3)(B) is applicable. See Utah R. Civ. P 4(d)(3)(B). Finally, rule 4 allows the trial court to direct service "by other means not prohibited by international agreement." Utah R. Civ. P. 4(d)(3)(C).

I. Rule 4(d)(3)(A)

¶ 11 In their briefs on appeal, both parties presume that there is no internationally agreed means for service of process in Mexico and argue whether service was satisfied under subsection 4(d)(3)(B) of the rule. That was also the subsection relied upon by the trial court. We conclude that because there is an internationally agreed means of service in Mexico, subsection 4(d)(3)(A) applies.

¶ 12 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) establishes international procedures for service of process between individuals or entities of member countries.2 See Hague Service Convention, concluded Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638. The United States adopted the convention in 1967, effective on February 10, 1969. See Hague Conference on Private International Law, Status Table, http://hcch.e-vision.nl/index_en.php?act= conventions.text&cid=17 (last visited Sep. 18, 2006). Mexico adopted the convention in 1999, effective on June 1, 2000. See id. The United States and Mexico therefore have an internationally agreed means for service of process. Because there exists an agreed means of service, rule 4(d)(3)(A) is the applicable rule for determining whether service of process was properly effectuated in Mexico.

¶ 13 Rule 4(d)(3)(A) provides that service shall be made "by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Utah R. Civ. P. 4(d)(3)(A). By the plain language of the rule, the terms of the Hague Service Convention therefore control whether process was properly served in Mexico.

¶ 14 Article 2 of the Hague Service Convention provides that "[e]ach contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States and to proceed in conformity with [other] provisions [of the convention]." Hague Service Convention, art. 2. Article 3 of the convention provides that the "judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention." Hague Service Convention, art. 3 (emphasis added). The model form is easily accessible and available on the internet. See Hague Conference on Private International Law, Request for Service Abroad of Judicial or Extrajudicial Documents, http://www.hcch.net/upload /act_ form14e.pdf (last visited Sep. 18, 2006). After the form is completed and sent to the destination Central Authority, the Central Authority then reviews the request, determines its compliance, and "shall itself serve the document or shall arrange to have it served by an appropriate agency." Hague Service Convention, art. 5 (emphasis added).

¶ 15 For purposes of effectuating international service of process under the Hague Service Convention, Mexico has designated its Central Authority as follows:

Ministry of Foreign Affairs General Direction of Legal Affairs Plaza Juárez No. 20, piso 5 Edificio Tlatelolco Colonia Centro, delegación Cuauhtémoc C.P. 06010 Mexico, Distrito Federal

Hague Conference on Private International Law, Mexico Central Authority & Practical Information, http://www.hcch.net/index_en. php?act=authorities.details&aid=267 (last visited Sep. 18, 2006). The Mexican Central Authority also lists its own website and several phone numbers and contact names for assistance. See id.

¶ 16 Our review of the record in this matter reflects that neither Husband nor the trial court clerk ever completed a request form conforming to the Hague Service Convention, or sent the request form along with all documents to be served upon Wife to the designated Mexican Central Authority. As a result, process was not served consistent with Articles 2 or 3 of the Hague Service Convention.

¶ 17 Furthermore, the Hague Service Convention and the country specific declarations indicate that Mexico has enacted language requirements, specifying that judicial documents, including a request form, must be in Spanish or that "when the judicial and extrajudicial documents to be served in Mexican territory are written in a language other than Spanish, they must be accompanied by the corresponding translation." Hague Conference on Private International Law, Declarations—Mexico, http://www.hcch.net/index_ en.php?act=status.comment&csid=412&...

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