Dobson v. Dobson

OPINION

Per Curiam:

This is an appeal from an order of the district court granting respondent’s motion to quash service of process and voiding a decree of divorce previously entered by the district court. Respondent Cecile Dobson has moved to dismiss this appeal on the basis that it challenges the propriety of an order quashing service of process, which is not an appealable determination. The motion is opposed.

The parties were married in 1980, in Cairo, Egypt. Prior to April 3, 1989, they both resided in Frankfurt Am Main, Germany, where appellant Theodore Dobson was employed by the American Consulate. Theodore began residing in Las Vegas, Nevada, on September 29, 1989. On November 20, 1989, Theodore filed in the district court a complaint for divorce together with an affidavit for service by publication. Theodore stated in his affidavit that Cecile no longer resided at 13/1 Jacob Leisler Strasse, Frankfurt Am Main, Germany, her last known address, and that he did not know her current address. On November 28, 1989, the district court entered an order providing for service by publication. A summons was issued on November 30, 1989. Notice of the action was published in the Henderson Home News, and an affidavit of publication was filed in the district court on December 28, 1989. Cecile’s default was entered on January 17, 1990. On January 18, 1990, the district court entered a decree of divorce dissolving the marriage between the parties. The decree did not adjudicate any division of property or debt or provide for payment of alimony. On January 24, 1990, Theodore terminated the lease for his Las Vegas apartment, effective January 31, 1990.

On May 3, 1990, a court in Frankfurt Am Main, Germany, entered a decree of divorce between the parties awarding a substantial lump sum payment and monthly alimony to Cecile. The German decree appears to be a default judgment.

On July 11, 1990, Cecile, through Nevada counsel, filed in the district court a motion by special appearance to quash service of process. Cecile based the motion on a claim that the district court’s order for service by publication was void due to fraud by Theodore. Cecile alleged that Theodore had intentionally listed an incorrect address on the affidavit of publication and had mailed the summons and complaint to the incorrect address. Cecile further alleged that Theodore had hired an attorney in Germany and initially appeared in the German divorce proceedings before filing for divorce in Nevada.

On October 2, 1990, the district court entered an order granting Cecile’s motion “in all respects” and declaring the divorce decree “null and void.” This appeal followed.

Cecile contends that this appeal should be dismissed because it challenges the propriety of an order quashing service of process, which is not an appealable determination. See Orme v. District Court, 105 Nev. 712, 782 P.2d 1325 (1989); Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976). It is true that the district court entered the order appealed from in response to a motion to quash service of process. By determining to grant the motion to quash, however, the district court necessarily determined that it had never obtained jurisdiction over Cecile, and consequently, that the divorce decree was void. See C.H.A. Venture v. G. C. Wallace Consulting, 106 Nev. 381, 794 P.2d 707 (1990) (judgment reversed because service was not properly effected, jurisdiction did not attach and the district court had no power to enter a valid judgement); Foster v. Lewis, 78 Nev. 330, 337, 372 P.2d 679, 682 (1962) (a judgment that is based on a void order of publication is void); Doyle v. Jorgensen, 82 Nev. 196, 201, 414 P.2d 707, 710 (1966) (a judgment that is not supported by proper service is void); see also, e.g., Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C.Cir. 1987) (it is uniformly held that a judgment is void if the requirements of effective service of process have not been satisfied, except where the defendant has waived insufficiency of service).

The Nevada Rules of Civil Procedure provide for relief from a void judgment in Rule 60(b)(3), and Cecile should have sought relief under that rule. See Foster, 78 Nev. at 337, 372 P.2d at 682; see also Combs, 825 F.2d at 442 (Fed.R.Civ.P. Rule 60(b)(4), providing for relief from void judgments, is properly used to obtain relief from a default judgment that is void for lack of valid service of process). The proper method for attacking a void judgment is through a motion or action brought pursuant to NRCP 60(b)(3), and the party attacking the judgment in such an action need only establish that the judgment is void to obtain relief. See James W. Moore & Jo Desha Lucas, Moore’s Federal Practice 60.25[2] (2d ed. 1991) (discussing the application of Fed.R.Civ.P. Rule 60(b)(4), which is identical to NRCP 60(b)(3)).

Cecile apparently presented her claims to the district court in a motion to quash service of process in order to avoid subjecting herself to personal jurisdiction in the divorce proceeding. Cecile could have achieved the desired result by bringing a motion under NRCP 60(b)(3) that raised only a challenge to the judgment based on a claim of lack of proper service of process. In Doyle, this court stated that a defendant may challenge the validity of a default judgment based on a claim of insufficiency of service of process either by bringing a motion pursuant to NRCP 60(b)(3) or by bringing a motion pursuant to NRCP 60(c). Doyle, 82 Nev. at 201, 414 P.2d at 710. This court further noted that if a defendant seeks in an NRCP 60(b)(3) motion any relief other than a declaration of defective service or that the judgment is void for lack of personal jurisdiction, the defendant makes a general appearance for purposes of personal jurisdiction. Because the defendant in Doyle had sought relief based on a claim of mistake, inadvertence, surprise or excusable neglect, this court held that the defendant had made a general appearance. Id. Therefore, an NRCP 60(b)(3) motion based solely on a claim of lack of proper service is not a general appearance, and would not have subjected Cecile to the personal jurisdiction of the district court. Cf. Deros v. Stern, 87 Nev. 148, 151, 483 P.2d 648, 650 (1971) (the consequence of requesting relief in addition to that necessary to protect the movant’s contention that jurisdiction over his person was not obtained is a general appearance, whether the motion is made before or after judgment is entered).

The district court effectively treated Cecile’s motion as one brought under NRCP 60(b)(3) and granted the appropriate relief. The district court’s order granting Cecile’s motion and declaring the divorce decree void is appealable. Holiday Inn v. Barnett, 103 Nev. 60, 732 P.2d 1376 (1987); Smilanich v. Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956). Accordingly, we deny Cecile’s motion to dismiss this appeal.¹

1 Appellant shall have thirty (30) days from the date of this opinion within which to file the opening brief. Thereafter, briefing shall proceed pursuant to NRAP 31(a).