NO. 93-140

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

MICKEY D. FONK,

Petitioner and Appellant,

v.

MAVANEE J. ULSHER,

Respondent and Respondent,

and

J.C.F. and S.J.F.,

and

MONTANA DEPARTMENT

Minor Children,

OF SOCIAL AND

REHABILITATION SERVICES, CHILD

SUPPORT ENFORCEMENT DIVISION,

Real Party in Interest.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael V. Sinclair, Coil & Sinclair, Bozeman,

Montana

For Respondent:

Robert T. Cummins, Helena, Montana

Peggy Probasco, CSED, Butte, Montana

Submitted on Briefs: August 12, 1993

SEP281993 Decided: September 28, 1993

Fi1ed: (J-J*

CLER,< <,p sli:~i-ii;::;. couelSTATE CA:- MUN i‘AiJA
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Petitioner Mickey Fonk brought this action to recover monies

involuntarily paid for child support, to determine paternity and to

question service of process on the basis that he had not been

personally served in the underlying dissolution proceeding. The

District Court for the First Judicial District, Lewis and Clark

County, dismissed Fonk's service of process claim and entered final

judgment. Fonk appeals that portion of the judgment which denies

his motion to quash service of process. We reverse the District

Court.

The sole issue on appeal is whether service of process is

valid when a process server leaves a summons and petition with a

family member at the residence of the person sought to be served.

Mickey Fonk (Mickey) and Mavanee Ulsher (Mavanee) were married

December 1, 1982, at Helena, Montana. Two children, J.C.F. and

S.J.F., were born during the marriage. The couple separated, and

Mavanee petitioned for dissolution of marriage on July 18, 1986, in

the District Court for the First Judicial District, Lewis and Clark

County.

On August 3, 1986, a Gallatin County deputy sheriff left the

summons and complaint in the dissolution proceeding with Betty

Fonk, Mickey's mother, at her home in which Mickey then resided.

Mickey was not home at the time. In his return on service, the

deputy erroneously stated that he had personally served Mickey.

2
Betty Fonk later stated that she did not know whether Mickey had

received the service papers.

On April 2, 1987, the District Court entered a default decree

dissolving the marriage of Mavanee Ulsher and Mickey Fonk,

distributing their marital assets between them, and ordering Mickey

to pay child support of $75 per month for each of the two minor

children. Mavanee was present at the proceeding: Mickey was not.

Mavanee, who received government Aid to Families with

Dependent Children (AFDC), assigned her AFDC rights to the

Department of Social and Rehabilitation Services, Child Support

Enforcement Division (CSED). CSEDthereafter sought enforcement of

its assigned child support rights by intercepting Mickey's tax

refunds and garnishing his income. Mickey stated that he first

became aware of the dissolution and his child support obligations

indirectly during 1990 when he sought legal advice regarding his

1989 income tax returns.

On June 14, 1991, Mickey filed this action alleging that he

was not the natural father of the two minor children and requesting

that the court order the State of Montana, Department of Social and

Rehabilitation Services and Mavanee to reimburse him for all

involuntarily-paid child support. Mickey also claimed that he had

not been properly served in the underlying dissolution proceeding

and that Mavanee committed fraud upon the court by representing

that he had fathered the two children.

3
On July 18, 1991, Mavanee filed her response to the paternity

action and included a cross-petition for increased child support.

She moved for dismissal of Mickey's petition, arguing that the

paternity issue was B iudicata and that his petition was a

collateral attack on the default judgment entered in the dissolution action.

After an April 3, 1992, hearing on the service of process

issue, the court held:

[I]t became apparent that the Sheriff of Gallatin County

had not, in fact, ever served Mickey Fonk with [the]

papers. However, it does appear to this Court that

Mickey was personally sewed with [the] papers. The law

does not require that the service be made by the Sheriff's office.

Testifying in this matter was Mickey's mother,

Betty. She indicated that when the Sheriff came to her

house on August 3, 1986, her son was not home. The

Sheriff left the papers with her. Her son came home

later in the day and she indicates that she gave the

papers to Mickey. She indicates that this occurred by

her directing Mickey's attention to the papers that were

lying on a table. She notes that the next day the papers

were gone so that "he must've picked them up." The

testimony of Mrs. Fonk was under oath. This Court

considers her testimony to be the proof of service in

this matter. Without the testimony of Mickey's mother,

the Court would have to hold that he was not served with

process.

Prior to the final adjudication of the case, Mickey prematurely

appealed the District Court's ruling and this Court dismissed the

appeal without prejudice on November 20, 1992. The District Court

entered final judgment as to Mickey's service of process claims

pursuant to Rule 54(b), M.R.Civ.P., on February 16, 1993; Mickey

now appeals that service of process ruling.

4
Was there valid service of process when the Gallatin County

deputy left the dissolution proceeding petition and summons with a

family member at Mickey's residence?

Mickey contends that service of process was invalid because he

was not personally served as required by Rule 4D(Z)(a), M.R.Civ.P.

Mavanee contends that the service was valid because the District

Court found that Betty Fonk's testimony pertaining to Mickey's

receipt of the documents was credible evidence establishing

personal service.

Our standard of review concerning a district court's conclusions of law is to determine whether the court's interpretation of

the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245

Mont. 470, 474-75, 803 P.2d 601, 603. Normally, the burden of

proof necessary to overcome statements and recitals in a sheriff's

return must be clear, unequivocal, and convincing. Sewell v.

Beatrice Foods Co. (1965), 145 Mont. 337, 341-42, 400 P.2d 892,

894. Here, the record reflects that the deputy's return on summons

was erroneous because it stated that the deputy personally served

Mickey J. Fonk. There being no dispute about this fact, we examine

whether service was valid.

The nature of service is twofold: it serves notice to a party

that litigation is pending, and it vests a court with jurisdiction.

Improper service undermines a court's jurisdiction, and a default

judgment subsequently entered is thereby void. See Sink v. Squire

(19891, 236 Mont. 269, 273, 769 P.2d 706, 708; Shields v. Pirkle

5
Refrigerated Freight Lines, Inc., et al. (1979), 181 Mont. 37, 45,

591 P.2d 1120, 1125.

Alternate means exist which obligate a person to become

involved as a party in a civil lawsuit. One is valid service of

process under Rule 4D, M.R.Civ.P., and the other is a voluntary

appearance by a named party. See Spencer v. Ukra (1991), 246 Mont.

430, 804 P.2d 380 (voluntary appearance waives all irregularities

in service of process). Because Mickey did not voluntarily appear

at the dissolution proceeding, we focus on service of process.

The directions of the service of process rule are mandatory

and must be strictly followed even where a defendant has actual

notice of the summons and complaint: knowledge of the action is not

a substitute for valid service. See In re Marriage of Blaskovich

(1991) I 249 Mont. 248, 815 P.2d 581; Holt v. Sather (1928), 81

Mont. 442, 264 P. 108. Service of process shall be made

upon an individual other than an infant or an incompetent

person, by delivering a copy of the summons and of the

complaint to the individual personally . . . . [Emphasis

supplied.]

Rule 4D(2)(a), M.R.Civ.P.

Here, the Gallatin County deputy sheriff erred by delivering

the service of process to Betty Fonk and signing a return on

summons document which erroneously stated that Mickey J. Fonk was

personally served. When Mickey questioned the validity of the

service of process, the court ruled that Betty Fonk made valid

service upon Mickey after finding that the law does not require

6
that service be made by the sheriff's office. We disagree with the

court's ruling.

The Montana Rules of Civil Procedure permit "other" service of

process or service by publication (otherwise known as constructive

service) only in limited contexts, none which apply to the present

situation. See Rule 4D(4), M.R.Civ.P. (other service), and Rule

4D(5)(a)(iii), M.R.Civ.P. (dissolution action service by publication when the person sought to be served cannot be appropriately

served under foregoing subsections of Rule 4D, M.R.Civ.P).

Likewise, any b personam or in rem jurisdiction discussion is

inapplicable in the present situation where threshold service of

process requirements have not been met.

Service may be made by "any other person over the age of 18

not a party to the action." Rule 4D(l)(a), M.R.Civ.P. That

provision is read in conjunction with the requirements of Rule

4C(l), M.R.Civ.P., which states

[u]pon filing of the complaint, the clerk shall forthwith

issue a summons, and shall deliver the summons either to

the sheriff of the county in which the action is filed,

or to the person who is to serve it . . . .

Betty Fonk was neither authorized by law to make service of

process nor was she an appointed agent to receive service of

process for Mickey. &Rule 4D(4), M.R.Civ.P., sunra. She signed

neither a return on summons nor an affidavit asserting that Mickey

could not be found. See Rule 4D(5)(c), M.R.Civ.P. She therefore

did not effectuate valid service of process regardless of whether

7
Mickey picked up the summons and complaint at her request. We

conclude that Betty Fonk's trial testimony is not a valid substitute for the service of process procedures required by Rule 4D,

M.R.Civ.P. To hold otherwise would violate Mickey Fonk's due

process of law rights under the United States and Montana Constitutions. See U.S. Const. amend. 14, and Art. II, § 17, Mont.Const.

Because Mickey was not validly served with process in the

underlying dissolution proceeding, we hold that the District

Court's April 2, 1987, decree is void. Additionally, the court's

June 3, 1992 order ruling that the appellant was in fact served

with the summons and complaint on August 3, 1986, is reversed and

we remand the case for further proceedings consistent with this

opinion.

We concur:

8
September 28, 1993

CERTIFICATE OF SERVICE

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

named:

Michael V. Sinclair

Coil & Sinclair

125 W. Mendenhall

Bozeman, MT 59715

Robert T. Cummins

Attorney at Law

1 No. Main

Helena, MT 59601

Peggy Probasco

Child Support Enforcement Div., SRS

529 E. Front

Butte, MT 59701

ED SMITH

CLERK OF THE SUPREME COURT