NO. 93-248

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

DAVID ELLIOTT FIFE,

Petitioner and Appellant,

v.

PATRICIA LEE MARTIN,

Respondent and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Paul Neal Cooley, Skelton & Cooley, Missoula,

Montana

For Respondent:

John McRae, Child Support Enforcement Division,

Missoula, Montana: James P. Taylor, Missoula,

Montana: Lynn M. Grant, Child Support Enforcement

Division, Helena, Montana

Filed:

Submitted on Briefs: September 30, 1993

Decided: November 10, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Petitioner David Fife brought this action seeking judicial

review of the Department of Social and Rehabilitation Services,

Child Support Enforcement Division's (CSED's), order which required

him to submit to blood testing for purposes of establishing

paternity. The District Court for the Fourth Judicial District,

Missoula County, denied Fife's petition for failure to properly

serve CSED with a copy of the petition, as required by the

provisions of the Montana Administrative Procedure Act. After

petitioner moved for relief from the court's order, the court found

that he served neither the Attorney General nor CSED as required by

law, and dismissed the action with prejudice. Petitioner appeals

from that ruling. We affirm.

The pertinent issues are rephrased as follows:

1 . Whether CSED is a necessary party to an action for

judicial review of its administrative paternity hearing and

subsequent order:

2 . Whether, in an action for judicial review of an agency

decision, service of process is valid when the petitioner fails to

serve the agency properly and promptly after filing the petition

for review:

3 . Whether a district court may dismiss an action for

judicial review of an agency decision for failure of the petitioner

to validly serve process, when the court has not received a

responsive pleading from the agency involved.

2
Patricia Lee Martin (Patricia), a single mother, gave birth to

B.J.M. on September 30, 1981. Approximately ten years later, she

applied for public assistance under the Aid to Families with

Dependent Children program, and named David Elliot Fife (David) as

B.J.M.'s father. As part of the application process she assigned

all of her rights to collect delinquent, future and present child

support obligations from the putative father to the State of

Montana, Department of Social and Rehabilitation Services.

CSED thereafter sought enforcement of its assigned rights by

attempting to establish the paternity of B.J.M. It sent David a

notice of parental responsibility, and then set a date for an

administrative hearing on the matter.

David in return moved the agency to dismiss the action,

challenging the constitutionality of CSED's process to determine

paternity by compelled blood drawings. Acknowledging that

constitutional issues cannot be determined in CSED's administrative

forum, the hearing examiner denied David's motion. Following the

hearing, the hearing examiner concluded there was sufficient

evidence to demonstrate a reasonable probability that David may be

the father of B.J.M., and ordered David to submit to paternity

blood testing.

On November 19, 1992, David moved CSED to stay its decision

and transmit the administrative record to the Fourth Judicial

District Court, Missoula County, where he planned to file a

petition for judicial review. On November 23, 1992, CSED responded

3
by denying David's motion on the grounds that CSED had not been

served with a petition for judicial review of its administrative

hearing order.

David thereafter filed a petition for judicial review at the

District Court on November 25, 1992. He later (on or about

November 30, 1992) mailed copies of the petition to both Patricia

and CSED. In his petition, David named Patricia as the sole

respondent.

On December 3, 1992, David sent notice that he had filed a

petition for judicial review to the administrative hearing

examiner, CSED, and Patricia. The notice stated that a copy of the

petition was "attached to the original [petition for judicial

review]," which had been previously mailed to CSED and to Patricia.

CSED filed a copy of the transcript and administrative hearing

record with the court; it neither answered the mailed petition for

judicial review or the notice of filing nor appeared in court.

Subsequently, David obtained and sent a summons to CSED and

Patricia. He also sent an acknowledgement of service form to each

of those parties on January 11, 1993. However, CSED did not accept

service of process or acknowledge service of the summons and

complaint as required by Rule 4D, M.R.Civ.P.

Prior to trial, the court reviewed the record and David's

petition and dismissed the action on the grounds that CSED had not

been properly named nor served with process. The court also denied

David's motion to stay the agency's decision.

4
David moved for relief from the order of dismissal on February

8, 1993, arguing, among other things, that the court should not

have reviewed the administrative hearing record, that the order

deprives him of his day in court, and that CSED was not a necessary

party to the proceedings before the court. In its response, CSED

agreed with the court's holding that David had failed to properly

serve the parties involved in the action.

By order dated March 23, 1993, the court reiterated its

previous ruling, and also found that David had failed to serve the

Attorney General's Office. David appeals.

I

IS CSED a necessary party to an action for judicial review of

its administrative paternity hearing and subsequent order?

In his petition for judicial review, David named Patricia as

the sole respondent. His present argument, which is not specific,

is that he could not properly serve the State because the case had

already been dismissed in the District Court. Additionally, he

asserts that "[nleither the State nor CSED were parties before the

Administrative Hearing Examiner." In the same paragraph of his

brief, he contrarily states that "CSED, however, did represent

[Patricia's] interests.“

David's arguments are not persuasive. Patricia had assigned

her child-support collection rights over to CSED as part of the Aid

to Dependent Families with Children application process. CSED is

the real party in interest in the paternity action and in the

5
underlying attempt to recover payment of child support benefits

from the putative father of B.J.M. See § 40-5-232, MCA. Immediately prior to the hearing, the hearing examiner correctly gave

notice to the parties that CSED was the real party in interest, by

stating

[slection 40-5-232 of the Montana Code states that if the

paternity of child has not been established, the DeDart-

& [CSED] may proceed to establish the paternity

administratively as allowed by Section 40-5-231 through

40-5-237 Montana Code Annotated. [Emphasis supplied].

CSED initiated proceedings to determine paternity: Patricia

was merely assisting the agency in determining the identity of

B.J.M.'s father. See §§ 40-5-202 and -204, MCA. Moreover, the

record reveals that David, CSED and Patricia were all represented

in their individual capacities during the administrative hearing.

This cumulative evidence leads us to conclude the District Court

did not err in ruling that CSED was the real party in interest.

II

In an action for judicial review of an agency decision, is

service of process valid when the petitioner fails to serve the

agency properly and promptly after filing the petition for review?

David argues that he served all of the parties of record by

mailing copies of the petition of judicial review to CSED and

Patricia, and that the District Court should have added CSED as a

party to the action. He asserts the court's order denies him of

his day in court based merely on a technicality. CSED argues that

6
it was never validly served, and therefore the District Court was

without jurisdiction to try the case. We agree with CSED.

As discussed above, CSED, the real party in interest, was the

proper respondent to David's petition for judicial review. David

failed to properly name CSED as the respondent in his petition for

judicial review, and he failed to properly serve the agency as

required by 3 2-4-702, MCA. That section required David to serve

copies of the petition promptly upon "the agency and all parties of

record." Construing the language of § 2-4-702, MCA, this Court has

stated

service of a petition for judicial review within thirty

days, or thereabouts, from the time the petition was

filed in the District Court should not result in a

dismissal [for failure to comply with § 2-4-702(2)(a),

MCA]. . . .

Rierson v. State (1980), 188 Mont. 522, 528, 614 P.2d 1020, 1024.

Judicial review of administrative actions exists as a creature

of statute. Section 2-4-702, MCA, provides for judicial review of

an administrative agency decision only after certain procedures

have been followed. The procedures comprise a jurisdictional

threshold which must be met in order to vest authority in a

district court. See generally Nye v. Dep't of Livestock (1982),

196 Mont. 222, 226, 639 P.2d 498, 500, citinq Art. VII, 5 4,

Mont.Const. Service of process upon CSED must be made as required

by Rule 4D(2)(h), M.R.Civ.P., which provides that when serving

process upon any state board or agency, a party needs to deliver a

7
copy of the summons and complaint to the Attorney General and to

any other party which may be prescribed by statute.

David filed the petition on November 25, 1992. By mailing a

copy of the petition to CSED and Patricia, he did not effectuate

valid service of process because Rule 4D(2)(h), M.R.Civ.P., does

not provide for service by mail upon CSED and because he failed to

serve the Attorney General's Office. We conclude David did not

effectuate valid service of process as required by law, and the

District Court correctly held that it was without jurisdiction to

hear the case.

III

May a District Court dismiss an action for judicial review of

an agency decision for failure of the petitioner to validly serve

process, when the court has not received a responsive pleading from

the agency involved?

David argues that the court dismissed the action before CSED

filed a responsive pleading in the matter. He contends the court

is without authority to issue an order, when no party specifically

requested the order. Additionally, David alleges that 5 40-5-

236(3), MCA, gave the court jurisdiction in this matter and that

the court obtained personal jurisdiction over CSED through its

voluntary appearance. His arguments are without merit.

Failure to make proper service of process prevents the court

from obtaining jurisdiction in a case. See generally In Re

Marriage of Fonk and Ulsher (Mont. 1993), _ P.2d -r -t 50

8
St.Rep. 1112, 1113. When David failed to validly serve process

upon the agency and the State of Montana, he prevented the District

Court from obtaining jurisdiction over the action. The court is

not required to wait for a party who has not been properly served

to file a responsive pleading prior to dismissing the action for

lack of jurisdiction.

Because the District Court did not have jurisdiction over

CSED, the petition for judicial review was a mere nullity and was

properly dismissed. We conclude the District Court did not err

in dismissing the case.

Affirmed.

We concur:

9
November 10, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Paul Neal Cooley

Skelton & Cooley

101 E. Main St.

Missoula, MT 59802

John McRae, Esq.

Dept. of SRS, Child Support Enforcement Div.

2501 Catlin, Ste. 208

Missoula, MT 59801

James P. Taylor

Attorney at Law

111 N. Higgins, Ste. 303

Missoula. MT 59802

Lynn M. Grant

Child Support Enforcement Div.

P.O. Box 5955

Helena, MT 59604

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA