State Office of Child Support Enforcement v. Mitchell

• Decision Date: 23 October 1997
• Docket Number: No. 97-51,97-51
• Citation: 330 Ark. 338,954 S.W.2d 907
• Parties: STATE of Arkansas OFFICE OF CHILD SUPPORT ENFORCEMENT as Assignee of Andrea KOLEN, Appellant, v. Garry MITCHELL, Appellee.
• Court: Arkansas Supreme Court

Page 907

954 S.W.2d 907

330 Ark. 338

STATE of Arkansas OFFICE OF CHILD SUPPORT ENFORCEMENT as Assignee of Andrea KOLEN, Appellant, v. Garry MITCHELL, Appellee.

No. 97-51.

Supreme Court of Arkansas.

Oct. 23, 1997.

Mona Mizell, Little Rock, for appellant.

Mike Everett, Marked Tree, for appellee.

THORNTON, Justice.

This case involves two issues: the interpretation of Arkansas Rules of Civil Procedure relating to personal service inside the State, and sovereign immunity as a bar to appellee's claim against the State.

Rule 4(d)(1) of the Arkansas Rules of Civil Procedure provides that substituted service of process may be made on an individual by delivering a copy of the summons and complaint "at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age...." Appellant, the State of Arkansas Office of Child Support Enforcement (OCSE) asks us to adopt a liberal interpretation of the phrase, "dwelling house or usual place of abode." The rules do not define these terms.

OCSE, acting on a paternity complaint against appellee, Garry Mitchell, served process on Mitchell by handing the summons and complaint to his mother at her house on 714 Lindsey, in Marked Tree, Arkansas. The evidence showed that Mitchell used his mother's address for his mailing address, but that he lived at 507 Sam Anderson, in Marked Tree. When Mitchell failed to appear at the paternity hearing, a default judgment was entered under which Mitchell's wages were garnished for child support. Mitchell immediately filed a motion to have the judgment set aside, claiming that he was not properly served and that he was not the child's father as alleged by the child's mother in the complaint. Mitchell failed to request an abeyance of support payments.

Six months later, the trial court suspended Mitchell's wage garnishment pending the outcome of genetic testing for paternity. By this time, Mitchell had paid $1377 in support to OCSE. When the paternity results showed that Mitchell could not be the child's father, OCSE moved to dismiss its paternity complaint. Mitchell counterclaimed for return of the support payments on the basis that he had not been properly served. The trial court held that service of process was invalid because Mitchell did not live at the location where process was delivered; therefore, the judgment for paternity and child support was void ab initio. Further, it found that Mitchell was precluded from suing the State for return of payments under the doctrine of sovereign immunity. OCSE appeals the judgment of the trial court on the validity of service of process, and Mitchell cross appeals the sovereign immunity ruling. We affirm on both points.

OCSE asks the court to broaden the meaning of the phrase, "dwelling house or usual place of abode" to include that location which could be reasonably calculated to provide notice to defendant of a pending action against him. OCSE supports its argument with two opinions from other jurisdictions. In Doyle v. Barnett, 658 N.E.2d 107 (Ind.Ct.App.1995), a personal-injury case, Doyle sought to have a default judgment against him set aside because service of process was not delivered to his residence, but rather to his father's house. The evidence showed that Doyle received all of his mail at his father's address, he listed his father's address on the accident report, the address he maintained with his insurance company was his father's address, and, at the time service was attempted and when he sought to have the default judgment set aide, Doyle's driver's license showed his father's address. In construing dwelling house or usual place of abode, the Indiana Court of Appeals concluded that "[b]ased on the totality of this evidence, we find that it was within the trial court's discretion to determine that Doyle's father's address was Doyle's usual place of abode, and because [plaintiff's] complaint was delivered to that address, that Doyle received proper service of the complaints." Id. at 109.

The Washington Supreme Court construed its substituted service statute so as to "effectuate the purpose of the statute while adhering to its spirit and intent." Sheldon v. Fettig, 129 Wash.2d 601, 607, 919 P.2d 1209, 1211 (Wash.1996). The court recognized two purposes to its statute: "to (1) provide means to serve defendants in a fashion reasonably calculated to accomplish notice and (2) allow injured parties a reasonable means to serve defendants." Id. at 608, 919 P.2d at 1212. In Sheldon, the defendant had lived away from her parent's home for over two years, but maintained her driver's license, her car insurance, her voter's registration, and mailing address at her parent's house. At the time of service, the defendant was living in another state. The court, recognizing that a defendant can "maintain more than one house of usual abode if each is a center of domestic activity where it would be most likely that defendant would promptly receive notice if the summons were left there," held that defendant had received valid service when process was delivered to her parent's home. Id. at 612, 919 P.2d at 1214.

As in Doyle and Sheldon, above, the facts in this case establish that the defendant, Mitchell, had significant contacts with the place of service. Mitchell received most of his mail at 714 Lindsey. In addition, his driver's license, his employer, and his property assessments all listed 714 Lindsey as his address. The only two sources Mitchell identified as having his 507 Sam Anderson address were his landlord and the gas company, but it appears that he had moved from his mother's house to the Sam Anderson address six years before the commencement of this litigation, and had not thereafter resided at his mother's house. The record reflects that Mitchell maintained significant ties with his mother's house. He testified that he stops by 714 Lindsey at least three time a week to see his mother and pick up his mail. OCSE claims that a defendant, who represents to most of the world that his address is at a certain location, should not be able to deny that it is otherwise. As a conscientious plaintiff, OCSE pleads that it should not suffer an adverse judgment when it relied on an address that Mitchell reported to sources that OCSE regularly uses for locating putative fathers.

Notwithstanding the views of the courts cited above and OCSE's argument, we are bound to prior case law under the doctrine of stare decisis. The policy behind stare decisis is to lend predictability and stability to the law. Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds). In matters of practice, "adherence by a court to its own decisions ... is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases." Brickhouse v. Hill, 167 Ark. 513, 523, 268 S.W. 865, 868 (1925) (quoting 7 R.C.L. 1008 (1915)). In Parish, this court held that "[p]recedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable." Parish, 244 Ark. at 1252, 429 S.W.2d at 52. The test is whether adherence to the rule would result in "great injury or injustice." Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990).

The issue of substituted service was squarely addressed in Sims v. Prescott Feed Mills, Inc., 286 Ark. 22, 688 S.W.2d 743 (1985). In Sims, the defendant and his brother lived in the same dwelling. The sheriff attempted to deliver service by handing a copy of the summons and complaint to defendant's brother at law offices of plaintiff's attorney. The defendant never saw the papers. We held that service was void because an attorney's office is not the defendant's dwelling. In so ruling, we said: "Substituted service is a departure from the common law, and rules or statutes providing for it are mandatory and to be complied with exactly." Id. at 23, 688 S.W.2d at 744 (citing Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). We said that this construction of the rule is the "most certain mode of conveying actual notice to an absent defendant." Id. at 23, 24, 688 S.W.2d at 744. In Edmonson, like the case at bar, the appellant moved the court to set aside the default judgment on the ground of defective service of process. The appellant's wife testified that she collected the summons and complaint at the sheriff's office. In that case, we stated that because the deputy failed to comply with the mandatory provisions of substituted service, the judgment was void ab initio. Id. at 509, 565 S.W.2d at 618.

OCSE argues that the Sims and Edmonson cases did not address construction or definition of "dwelling" or "abode," but rather, that these cases are predicated upon obvious departures from the rule. In Sims, the summons and complaint were left at a lawyer's office, not at the defendant's, or anyone else's residence. In Edmonson, defendant's wife was served at the sheriff's office. OCSE argues that these cases are not on point with the facts present here, as the court did not have to decide whether a residence where service was effected was the defendant's dwelling or usual place of abode.

OCSE's point is well taken. This court, however, defined the term, "usual place of abode" in McGill v. Miller, 183 Ark. 585, 37 S.W.2d 689 (1931). In McGill, we held that "[o]ne's usual place of abode, in its ordinary acceptation and in the sense used by the statute, means the place where a person lives or has his home, that is, his fixed permanent home; the place to which he has--whenever he is absent--the intention of returning." Id. at 589, 37 S.W.2d at 690. The defendant in McGill had moved to Little Rock three months before the institution of the suit. He had a permanent job and intended to move his family to Little Rock as soon as he could sell his house in...