Shaddix v. Shaddix , 603 So. 2d 1096 ( 1992 )

603 So.2d 1096 (1992)

Danny SHADDIX
v.
Marilyn SHADDIX.

2910270.

Court of Civil Appeals of Alabama.

August 14, 1992.

Wilford J. Lane, Anniston, for appellant.

No brief for appellee.

RUSSELL, Judge.

Danny Shaddix (husband) appeals from the denial of a Rule 60(b), Alabama Rules of Civil Procedure, motion to set aside a default judgment for failure of proper service.

On May 13, 1991, Marilyn Shaddix (wife) filed a complaint for divorce in the Circuit Court of St. Clair County, Alabama. In addition to seeking a divorce, the wife asked the court for an award of child custody, child support, debt payments, real property, and attorney fees. Service upon the husband of the summons and complaint was attempted by certified mail at the husband's then-known address in Bush, Louisiana. This service was unsuccessful, however, and on June 7, 1991, the letter containing the summons and complaint was returned, marked "unclaimed." On July 22, 1991, counsel for the wife filed an affidavit with the court stating that service by publication was necessary. Publication of notice of suit appeared in the St. Clair News-Aegis, St. Clair County, Alabama, for four consecutive weeks, beginning July 25, 1991.

On October 4, 1991, the trial court held a default hearing and entered a judgment of divorce. The court further awarded the wife custody of the parties' 18-year-old son; ordered that the husband pay $200 per month in child support; entered a judgment against the husband for past support and for dental and medical expenses; ordered the husband to convey to the wife his interest in certain real property; and awarded the wife an attorney's fee.

In January 1992 the husband moved, under Rule 60(b), A.R.Civ.P., for an order setting aside the default judgment, charging lack of proper service. After a hearing the trial court denied the husband's motion.

The issue presented on appeal is whether the trial court erred in denying the husband's Rule 60(b) motion. We reverse and remand.

As indicated above, counsel for the wife filed an affidavit stating that it was necessary to obtain service upon the husband by publication. In this affidavit the wife alleged that she had attempted service by certified mail "at [the husband's] last known address. The return of service revealed that the [husband] could not be served at said address and there was no other and/or forwarding address" that could be ascertained. The affidavit further stated that "a diligent attempt has been made to locate the [husband's] where-abouts and/or address without success" and that "the undersigned attorney has no other means by which to serve the [husband] other than by publication."

The husband maintains that the wife's affidavit was insufficient to obtain effective service of process by publication because under Rule 4.3, A.R.Civ.P., publication may only be used where the defendant avoids service by other means and the plaintiff files an affidavit averring such avoidance.

It is well settled that Rule 4.3 provides for service by publication where a defendant avoids service by other means. Under such circumstances, Rule 4.3(d)(1) requires that before service by publication can be made, the plaintiff must file an affidavit with the court alleging that the defendant has avoided service of process and facts showing such avoidance. This court has consistently required strict adherence to this rule. See, e.g., Floyd v. Floyd, 513 So.2d 6 (Ala.Civ.App. 1987); Richardson v. Arrington, 431 So.2d 1301 (Ala.Civ.App.1983). In the case sub judice it is readily apparent that the wife has not fulfilled the requirement that she aver facts showing the husband's avoidance of service.

This court has previously pointed out, however, that Rule 4.3 may also provide for service by publication where avoidance of service is not an issue, but the residence of the defendant is unknown. See Floyd, 513 So.2d 6; Brooks v. Brooks, 494 So.2d 645 (Ala.Civ.App.1986). In such a case Rule 4.3(d)(1) does not require the plaintiff's affidavit to aver facts showing avoidance. Rather, the plaintiff should allege that "service of summons or other process cannot be made because ... the residence [of the defendant] is unknown to the affiant and cannot with reasonable diligence be ascertained."

In the instant case the wife's affidavit indicated that a diligent attempt to locate the husband's whereabouts had been made and had proven unsuccessful, thus fulfilling, at least superficially, the requirements of Rule 4.3(d)(1). However, we find that it does not affirmatively appear from an examination of the record that a diligent effort to locate the husband was made in this case or that such an effort would have proven futile. As indicated above, the certified letter containing the summons and complaint was returned on June 7, 1991, marked "unclaimed." This letter had been sent to the husband's then-known address in Louisiana. The uncontroverted sworn statement of the husband in his Rule 60(b) motion was that the wife was aware that he worked offshore and that his job required his absence for up to forty days at a time. In this motion the husband also averred that he was, in fact, absent from his residence at the relevant time due to his employment at an offshore drilling site. Further, the uncontroverted sworn statement by the husband was that at the time the wife's counsel filed the affidavit of July 22, 1991, the wife was aware of the husband's new address in Wilmington, North Carolina, as it had been communicated to the wife. What is more, the wife apparently was aware of an alternative means by which to locate and contact the husband; for on December 16, 1991, counsel for the wife mailed to the husband a letter and a copy of the divorce judgment, in care of the husband's mother at her residence in Oxford, Alabama, where she had been a lifelong resident. At the default hearing, the wife and her counsel did not offer any proof of a diligent effort made to locate the husband.

In view of the record, we conclude that, the wife's affidavit notwithstanding, the wife failed to exercise reasonable diligence in attempting to locate the husband and serve the summons and complaint upon him. As such, we find that service by publication was improper. Failure to exercise due diligence in perfecting personal service of process precludes notice by publication. Sams v. Equitable Life Assurance Society of the United States, 402 So.2d 999 (Ala.Civ.App.1981).

There may be an even more basic reason that service by publication in this case was improper: In Braley v. Horton, 432 So.2d 463 (Ala.1983), our supreme court held that personal jurisdiction may not be obtained over a nonresident defendant through the means of service by publication. Accordingly in the instant case, the residency of the husband is a matter of great importance. The record shows that while in her complaint for divorce the wife alleged the husband to be a resident citizen of Alabama for the preceding six months, she did not offer proof of this at the default hearing or any other time. To the contrary, when she filed the complaint, she gave the husband's address as Bush, Louisiana. She had certified mail sent to that address, and she testified that the husband was not in the state of Alabama. The husband's uncontroverted sworn statement in his Rule 60(b) motion was that he was not a resident of Alabama at the commencement of the action. The wife has offered no evidence or proof that in any way attempts to dispute the husband's contention.

It must here be admitted that reading and interpreting Rules 4.2 and 4.3, A.R.Civ.P., in pari materia is a difficult venture. Moreover, it is not readily apparent from Braley and other judicial attempts at construing these rules whether the injunction against service by publication applies where the plaintiff asserts simply that the defendant's residence is unknown, but the defendant is, as a matter of fact, a nonresident. However, statements by our supreme court since Braley tend to indicate that service by publication is permissible only where a resident defendant has avoided service and cannot be located or where service is sought upon a corporation having one of its principal places of business within the state. See Wise v. Siegel, 527 So.2d 1281 (Ala. 1988). Further, it would seem that the limits of constitutional due process militate against service by publication as a mechanism for acquiring personal jurisdiction over a nonresident defendant in an in personam proceeding. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983).

Under the facts of this case, the foregoing reasons compel the conclusion that the wife failed to comply with the provisions of the Rules of Civil Procedure with regard to serving the husband. It is well settled that failure of proper service under Rule 4, A.R.Civ.P., deprives a court of jurisdiction and renders judgment by default void. Whitfield v. Sanders, 366 So.2d 258 (Ala.1978). Therefore, the trial court's judgment denying the husband's Rule 60(b) motion is due to be reversed. The cause is remanded with instructions that the trial court enter an order consistent with this opinion.

The husband's request for an attorney's fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and THIGPEN, J., concur.