Cite as 2024 Ark. App. 410



## ARKANSAS COURT OF APPEALS

DIVISION IV No. C V
- 2 3
- 475

KAREN ASTORGA APPELLANT
V.

LUCIANO ASTORGA APPELLEE Opinion Delivered September 4, 2024
APPEAL FROM THE J EFFERSON COUNTY CIRCUIT COURT [ NO. 3 5DR

- 21
- 876 ]
HONORABLE MAC NORTON , JUDGE
AFFIRMED

MIKE MURPHY, Judge In this one
- brief appeal, appellant Karen Astorga appeals from the Jefferson County Circuit Court’s order denying her motion to set aside the parties’ divorce decree. Karen
contends the court never gained personal jurisdiction over her due to imperfect service , rendering the decree void. Accordingly , she argues that the court erred in failing to set aside
the decree

. We affirm. Karen and Luciano were married for thirty
- five years, and four children were born of the marriage. Luciano filed for divorce on October 4, 2021. Karen was served by a process

server with a summons, complaint for divorce, and notice of hearing on restrainin g order on
November 1. A divorce hearing was held on February 1, 2022, but Karen was not present. The court stated from the bench that Karen had called its office that morning seeking to postpone2

the hearing so she could obtain representation

. Luciano sta ted that he had been with Karen
when she called the court but did not give any more detail. Following the hearing, a divorce was granted on the basis of general indignities. A
divorce decree and property settlement order was issued from the court a week later. The
decree ordered that Karen was entitled to her marital share of Luciano’s retirement account. A Q ualified D omestic R elations O rder (QDRO) dividing the retirement account was file d August 23, 2022

. On February 4, 2023 , Karen, represented by counsel, filed a pleading titled “ B rief in
S upport of Petition for A limony.” On February 8, Karen filed a motion to set aside the
divorce decree under Rule 60 of the Arkansas Rules of Civil Procedure . In the motion , she alternatively requested that the divorce decree be modified to include alimony. Luciano
moved to dismiss Karen’s action for failure to state a claim and lack of jurisdiction. Without a hearing, the court denied Karen’s motion by order entered March 28 , finding that she was properly served and that her request for alimony was untimely

. On April 8, Karen filed a motion for reconsideration and an amended motion for reconsideration , which was deemed denied . She filed her notice of appeal on April 2 5

. On ap peal, Karen argues that service was not perfected , rendering the decree void

. Statutory service requirements, being in derogation of common
- law rights, must be strictly
construed , and compliance with them must be exact. Carruth v. Design Interiors, Inc. , 324 Ark. 373, 921 S.W.2d 944 (1996). Arkansas law is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. Vinson v. Ritter , 86 Ark. App. 207,3

167 S.W.3d 162 (2004) (citing Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003)). To support her argument, she relies on Arkansas Rule of Civil Procedure 4(d)(1) , which provides :

(d) Proof of Service. The person effecting service shall make proof of service to the clerk within the time during which the person served must respond to the summons. Failure to make proof of service, however, shall not affect the validity of service. ( 1) Proof of service may be made by executing a certificate of service contained in the same document as the summons. If service is made by a person other than a sheriff or his or her deputy, the certificate shall be sworn. If service has been by mail or commercial delivery co mpany, the person making service shall attach a return receipt, envelope, affidavit, acknowledgment, or other writing required by subdivision (g)(1) and (2) of this rule. Here, according to the proof of service , Karen was personally served by a process server on November 1, 2021, at 6:15 p.m. in her driveway. The certificate of service lacks a notarized
signature

. Karen concedes service was completed but contends that because the process

server failed to get the certificate sworn, service was never perfected

. It is well settled that there is a distinction between service and proof of service. Israel v. Oskey , 92 Ark. App. 192, 201, 212 S.W.3d 45, 51 (2005). Failure to make proof of service does not affect the validity of service. Id. We r eview findings by the court concerning service under a clearly erroneous standard. Turcios v. Carter , 2023 Ark. App. 476, at 9, 678 S.W.3d 802, 810

.4

Here, Karen concedes service was completed ; it was therefore not clearly erroneous
for the court to conclude service was made. Accordingly, personal jurisdiction was acquired , and the decree is not void

. Karen alternatively argues the court erred by failing to set aside the divorce decree and consider alimony on the basis of Arkansas Rul e of Civil Procedure Rule 60(g)

. This argument lacks merit. Rule 60 governs a party’s entitlement to relief from a judgment, decree, or order. Rule 60(g) states: “ (g) Exception for Divorce Decrees. No judgment granting a divorce, except as it relates to alimony, shall be set aside under subsection (c)(2) of this rule.” Further, subsection (c)(2) permits a new trial against a defendant who was “ constructively summoned” and “did not appear” so long as a motion was made within two years after the filing if the judgment

. At the outset, Rule 60 is not applicable because we hold that Karen was properly
served

. Further, she was aware of the divorce hearing because she called the court’s office the
morning it was set, and she availed herself of the QDRO. Thus, she is not entitled to relief
under Rule 60

. Karen’ s remaining arguments challenge the court’s determination concern ing the

gro unds for divorce, the finality of the decree , and whether there was a miscarriage of justice
and fraud on the court

. We do not address th e se arguments because Karen did not request any relief in the circuit court first. See Cook v. Cook , 2022 Ark. App. 449

. Affirmed

.5

T HYER and H IXSON , J J., agree

. George Howard Jr. Legal Center, L.L.C. , by: Risie Howard , for appellant. One brief only.