Wilson v. Wilson

• Decision Date: 06 April 2016
• Docket Number: No. CV–15–366,CV–15–366
• Citation: 2016 Ark. App. 191,487 S.W.3d 420
• Parties: Marcus Shane Wilson, Appellant v. Edie Lynne Wilson, Appellee
• Court: Arkansas Court of Appeals

2016 Ark. App. 191

487 S.W.3d 420

Marcus Shane Wilson, Appellant

v.Edie Lynne Wilson, Appellee

No. CV–15–366

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered April 6, 2016

Andrea Brock, P.A., by: Andrea Brock, Forrest City, for appellant.

No response.

BART F. VIRDEN, Judge

This appeal stems from the Cross County Circuit Court's denial of Marcus Wilson's petition to set aside a judgment in which it denied Marcus's request to modify visitation with his minor child, D.W. We affirm.

I. Facts

Marcus Wilson and Edie Wilson were divorced in August 2004, and by mutual agreement, Edie was granted custody of the parties' minor children. Marcus was granted visitation and shared parenting.

On February 26, 2010, Edie filed a petition to suspend Marcus's visitation with the children because of allegations that Marcus had been arrested for possession of a firearm, that Marcus and his wife had been manufacturing methamphetamine, and that there was domestic abuse in their home. A temporary ex parte emergency order suspending visitation was entered the same day. On March 5, 2010, Marcus was personally served by process server with a summons, the complaint, and the order. The summons set forth that a hearing would be held on March 10, 2010, or sooner if Marcus requested one, and that if he failed to respond he would be subject to a default judgment. An affidavit of service of the summons, complaint, and ex parte temporary order was returned.

Marcus did not file an answer, and the hearing took place on March 10, 2010. Marcus did not attend the hearing, and the circuit court entered an order on April 8, 2010, terminating Marcus's visitation with his children.

On November 15, 2013, Marcus filed a petition to reinstate his visitation with D.W., the only child who was still a minor. In his petition, Marcus acknowledged that on February 26, 2010, the circuit court entered a temporary order suspending his visitation. Marcus asserted that the criminal charges against him had been dropped, and that because it was in D.W.'s best interest to have a relationship with his father, the court should reinstate visitation. Edie filed a response on January 10, 2014, arguing that the petition should be denied.

At the hearing on July 31, 2014, Marcus asserted that a material change in circumstances had occurred, namely, that no criminal charges had ever been filed against him and that he was employed and remarried; therefore, Marcus argued, because of his stability over the last few years, and because it was generally good for fathers to be involved in their children's lives, it was in D.W.'s best interest for the court to reinstate visitation. Edie and the child's stepfather asserted that visitation should not be reinstated. They testified that the child's family life had been stable for the last four years and that D.W. was thriving in his current situation that did not include Marcus.

At the hearing, Marcus's attorney explained that the petition to reinstate visitation had referenced the February 26, 2010 order, and not the April 8, 2010 order, because neither she nor Marcus had been aware until that morning that the April order existed and that Marcus had believed that “there was never another hearing.” The court refused to hear testimony concerning anything but the issue of modification of visitation and instructed counsel that she could proffer any evidence related to why Marcus did not attend the hearing on March 10, 2010.

On September 10, 2014, the court entered an order denying Marcus's petition to reinstate visitation. In the order, the circuit court made the following findings: there had been little contact between D.W. and his father over the last few years other than a few phone calls and their paths crossing at a family Christmas gathering; Marcus had kept up with D.W.'s life by talking to D.W.'s adult siblings; Marcus's visitation had been terminated in 2010 because he had been arrested and charged with possession of a gun and manufacturing methamphetamine; the criminal charges had been dismissed in 2013; and since 2014, Marcus had remarried, had been employed full time, and was stable in his lifestyle.

The circuit court also found that though Marcus had shown a material change in circumstances had occurred, “there is no evidence introduced which could lead this court to determine that modification is in the best interest of the child. Without that finding, this court may not modify the visitation order.” The circuit court also found that Marcus had not addressed “the other factors which this court should consider” listed in Sharp v. Ke e l er , 99 Ark. App. 42, 56, 256 S.W.3d 528, 538 (2007) (“the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems with transportation and prior conduct in abusing visitation, the work schedule and stability of the parties, the relationship of siblings and other relatives”).

On September 22, 2014, Marcus filed a motion to set aside the April 8, 2010 default judgment. Alternatively, he requested postjudgment relief in the form of a new trial.

A hearing on the matter took place on November 12, 2014, and after hearing argument from both sides, the court denied Marcus's motion to set aside judgment. Marcus filed a timely notice of appeal.

II. Points on Appeal

Marcus raises the following four points in this one-brief appeal: (1) the circuit court erred when it denied Marcus's motion to set aside the April 8, 2010 judgment as void for insufficient service; (2) the circuit court erred when it denied Marcus's motion to set aside the April 8, 2010 judgment because the relief granted by the circuit court exceeded the relief sought; (3) the circuit court erred when it denied his Rule 59 motion for a new trial because irregularities in the proceedings had prevented Marcus from having a fair trial and because the circuit court made an error of law; (4) the circuit court erred in refusing to reinstate visitation.

None of Marcus's arguments on appeal are meritorious, and we affirm.

A. Service

Marcus argues that this court must reverse the circuit court's decision to deny his motion to set aside the April 8, 2010 default judgment because service of the temporary ex parte order entered on February 26, 2010, was not properly made. We disagree, and we affirm.

Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Shotzman v. Berumen, 363 Ark. 215, 223, 213 S.W.3d 13, 16 (2005). 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. Our supreme court has held that the same reasoning applies to service requirements imposed by court rules. Id.

It is axiomatic that a circuit court in custody proceedings retains jurisdiction of the cause and can modify a previous decree upon a showing of changed circumstances and in furtherance of the welfare of the child. Pyle v. Pyle, 254 Ark. 400, 403, 494 S.W.2d 117, 120 (1973). Where modification is considered a continuation of an original matter before the court, the issuance of a new or original process, or new personal service, is not required. Parsons v. Parsons, 267 Ark. 1035, 1038, 593 S.W.2d 483, 485 (App.1980).

Arkansas Rule of Civil Procedure 5 governs service requirements where a court has continuing jurisdiction, and it sets forth the following:

(1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney, except that service shall be upon the party if the court so orders or the action is one in which a final judgment has been entered and the court has continuing jurisdiction.

(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail or commercial delivery company at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party[.]

...

(3) If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail or commercial delivery company shall comply with the requirements of Rule 4(d)(8)(A) and (C), respectively .

(Emphasis added.)

The purpose of Rule 5(b)(3) is not to require that a party must serve summonses with motions to modify a final decree when the court has reserved continuing jurisdiction. Dickson v. Fletcher, 361 Ark. 244, 249, 206 S.W.3d 229, 232 (2005). Instead, Rule 5 directs that “such motions are required to be served in the same manner or method required for a summons and complaint [.]” Dickson, 361 Ark. at 249, 206 S.W.3d at 232 (Emphasis added.) Arkansas Rule of Civil Procedure 4(d)(1) sets forth that service may be made “[u]pon an individual, other than an infant by delivering a copy of the summons and complaint to him personally[.]”

The permissible methods of serving the motion are listed in Rule 5(b)(2), and personal delivery is specifically set forth as a valid method of service. Rule 5(b)(3) simply provides that if service is by mail or commercial delivery service, the requirements of Rule 4(d)(8)(A) and (C) must be satisfied. See 2 David Newbern, John Watkins & D.P. Marshall Jr., Arkansas Civil Practice & Procedure § 38:5 (5th ed. 2011) Service is not required to be made by mail, as Marcus argues.

On March 5, 2010, at 1:40 p.m. Marcus was personally served by a process server with the February 26, 2010 order. Marcus urges this court to hold that the circuit court erred by not requiring service by mail; however, nothing in Rule 5 dictates that service must be made by mail or forbids service by personal delivery. Rule 4 simply permits service via regular and commercial mail. See Ark. Rule Civ. P 4(d)(8)(A) an...