Barbara BICKEL (f/k/a Barbara Jackson), Plaintiff and Appellee, v. David JACKSON, Defendant and Appellant.
Civ. No. 940301.
Supreme Court of North Dakota.
March 16, 1995.
529 N.W.2d 318
Knudson argues that the Department‘s failure to prove Trooper French‘s inability to testify at Hearing I requires exclusion of his hearsay statements. However, the present sense impression exception to the hearsay rule does not require the declarant‘s unavailability to testify.
The Department contends that, if Trooper French‘s statements are admissible, then the preponderance of the evidence from Hearing I supports the hearing officer‘s finding that the time of driving or the accident occurred within two hours of 12:48 a.m., November 5, 1994, the time the Intoxilyzer test was administered. We agree.
Section 39-20-04.1,
“the findings, conclusion, and decision from the hearing confirm that the law enforcement officer had reasonable grounds to arrest the person and test results show that the arrested person was driving or in physical control of a vehicle while having a blood alcohol concentration of at least ten one-hundredths of one percent [0.10] by weight at the time of the performance of a test within two hours after driving or being in physical control of a motor vehicle.” (Emphasis added.)
In order to rely upon the chemical test results, the test must have been performed within two hours of either driving or actual physical control. Wolf v. N.D. Highway Comm‘r, 458 N.W.2d 327 (N.D.1990).
We believe that, taking Trooper French‘s statements into account, the findings of fact from Hearing I are supported by a preponderance of the evidence. Peterson, 518 N.W.2d 690. A reasoning mind reasonably could determine from the preponderance of the evidence that the accident occurred after 11:00 p.m. on November 4, 1993, and that the Intoxilyzer test was administered within two hours. Bryl, 477 N.W.2d 809. Therefore, we affirm the hearing officer‘s decision to suspend Knudson‘s license for a period of 365 days.
Affirmed.
NEUMANN, SANDSTROM and MESCHKE, JJ., concur.
VANDE WALLE, C.J., concurs in the result.
Scott T. Solem, Beulah, for plaintiff and appellee.
David R. Jackson, pro se, Apple Valley, CA.
David Jackson appeals from an order amending a divorce judgment to hold him liable to Barbara Bickel, his former spouse, for child support arrearages and to increase his monthly child support obligation. Because Bickel failed to comply with the procedure for service by publication, the trial court did not acquire personal jurisdiction over Jackson and the order is void. We therefore vacate the order.
I
Jackson and Bickel were divorced in 1982. Bickel was awarded custody of their two children and Jackson was ordered to pay child support.
In June 1993, Bickel moved to, among other things, obtain a judgment against Jackson for child support arrearages and to review his monthly child support obligation. Notice of the motion and the pleadings were mailed by certified mail, return receipt requested, to Jackson at a Lucerne Valley, California address. This mailing was returned and marked “returned to sender,” “no such address.” Bickel then sent the documents by certified mail to Jackson at an Apple Valley, California address. The original envelope and return receipt were not filed with the trial court. In July 1993, the trial court denied Bickel‘s motion because of insufficient service of process.
In October 1993, Bickel attempted to secure personal service on Jackson at another Apple Valley address through the San Bernardino County Marshall‘s Office in Victorville, California. The marshall‘s office was unable to serve Jackson because he had moved. In January 1994, the Mercer County Sheriff‘s Office was also unsuccessful in locating Jackson in North Dakota.
In May 1994, Bickel renewed her motion. Bickel‘s attorney filed an “affidavit for publication” stating personal service could not be made on Jackson in either North Dakota or California. The notice of motion was published in the Beulah Beacon for three consecutive weeks beginning May 26, 1994, and again for three consecutive weeks beginning June 23, 1994.
II
A court must have personal jurisdiction over a nonresident spouse to validly adjudicate child support. Smith v. Smith, 459 N.W.2d 785, 789 (N.D.1990); Byzewski v. Byzewski, 429 N.W.2d 394, 397 (N.D.1988). It is well settled in this state when service of process is obtained by publication, there must be strict compliance with the provisions allowing for such service. E.g., Bartell v. Morken, 65 N.W.2d 270, 273 (N.D.1954), and cases cited therein. Service by publication is permitted by
“(e) Service by publication.
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“(4) Mailing summons and complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication and not later than ten days after the first publication of the summons, must be deposited in some post office in this state, postage prepaid, and directed to the defendant to be served at the defendant‘s last reasonably ascertainable post office address.”
Bickel concedes a copy of the summons and complaint was not mailed to Jackson‘s “last reasonably ascertainable post office address” within 10 days after the first publication. But she asserts this requirement is “absurd as it imposes an impossibility and succeeds at nothing” because “requiring a party to attempt to personally serve process upon an individual at an address previously determined to be unknown would be a completely idle and unfruitful act, ...” We reject this argument for several reasons.
First, Bickel misreads Bartell for the proposition a party is not required to strictly comply with service by publication requirements which are “completely idle and unfruitful.” In Bartell at 276, the Court held
Second,
Third, Bickel incorrectly equates the
Finally, Bickel wrongly argues the
“This requirement that the clerk of the superior court mail a notice to the party being served by publication at the best address the applicant can furnish — usually the last known address — is no formal gesture of deference to due process. As every practicing attorney and law-enforcement officer knows, there are among certain classes those persons who would feel an obligation to forward or deliver a letter to one being sought, but who would feel obliged to give a lawyer or a deputy sheriff no information whatever as to the whereabouts of the one sought.” Harrison, 143 S.E.2d at 602. See also Snead v. Foxx, 329 N.C. 669, 406 S.E.2d 829, 832-833 (1991).
We agree with the North Carolina Supreme Court‘s rationale for the service by publication mailing requirement. By requiring the mailing of copies of the summons and complaint to an address from which they might reasonably be forwarded to a defendant, this procedure simply attempts to provide the defendant actual notice of the proceedings where personal service has failed. Although the mailing may not succeed in providing actual notice, the mailing certainly furthers the due process requirement of providing “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).
We conclude Bickel‘s failure to comply with the
III
We have considered the other arguments raised by Jackson and, based on the record before us, we deem them to be without merit.1 Because there was defective service by publication in this case, we vacate the order amending the divorce judgment.
VANDE WALLE, C.J., and LEVINE and NEUMANN, JJ., concur.
MESCHKE, Justice, concurring and dissenting.
I agree that Bickel‘s failure to complete the
This was a non-appealable ex parte order. See
In this case, it is clear the trial court had personal jurisdiction over Jackson for the divorce decree in 1982, when Jackson was ordered to pay Bickel $200 per child, totalling $400 child support monthly. The trial court has continuing jurisdiction to “modify the same at any time.”
Bickel sought to increase Jackson‘s monthly child support as she is entitled to do. See
On notice by publication, when a party has “had no actual notice or knowledge of the pendency of the [motion] so as to enable the [party] to make application to defend before the entry of judgment therein,” the rules of procedure allow that party to be heard “at any time within three years after entry of judgment on such terms as may be just” if the party shows “to the satisfaction of the court by affidavit, stating the facts, that the [party] has a good and meritorious defense to the action” and proves the lack of actual notice.
Also, it is possible the judgment for arrearages should be handled differently. Bickel sought a formal judgment for accumulated support arrearages of $22,731.42. Why is not entirely clear. It may have been for the reason that the original support decree preceded enactment of
On the judgment for arrearages, too, Jackson‘s failure to receive notice largely resulted
The parties subject to the [child support] order shall immediately inform the clerk ... of any change of address or change of any other condition which may affect the proper administration of this chapter [on child support payments].
Bickel repeatedly tried to notify Jackson of her motion, but Jackson evidently changed his address several times without notifying the clerk of court about a new one. I would not immediately reward Jackson by wholly voiding the docketed money judgment, as the majority opinion appears to do, because the lack of notice to him was largely Jackson‘s own fault.
While I agree Jackson would be entitled to an opportunity to be heard, I believe that he could have obtained that hearing from the trial court as our rules of civil and appellate procedure expect. This court is not a trial court. Unless Jackson can show patent error in the trial court‘s records of support payments and remittances, it is questionable whether he could show good cause to set aside the money judgment. On the other hand, he needs an opportunity to show what his periodic child support payment should be prospectively under current guidelines before it is increased. For that matter, he would need that opportunity before his support obligation is decreased, since Jackson now claims his business failed recently and he is financially strapped to pay support.
I believe that the trial court is more capable of addressing the entire situation than this court. A remand will enable the trial court to act on all related child support matters at the same time. For these reasons, I believe that our disposition should be a dismissal of this appeal with remand to the trial court for Jackson‘s opportunity to be heard on the merits.