*1
not an admission
him for
other
any
nor
it be used
purpose,
him in
against
other
proceeding.
Giles,
of our
added.)
Norrellv.
(Emphasis
light
reasoning
Reversed remanded. Diane M. RAYMOND v. Daniel A. RAYMOND 00-751 Court of Arkansas
Supreme delivered Opinion February denied March rehearing [Petition 2001.] *3 Smith, Mashburn & E. for Scott Taylor,by; appellant. Matthews, Rhoads, McClure, & Campbell, Thompson, Fryauf, BA., Matthews, David R. by: appellee. decree This involves a divorce appeal TOM Glaze, Justice. appellee
entered in Daniel A. favor Raymond’s against wife, Diane M. filed a Daniel divorce on Raymond. complaint 30, 1996, December but it is that Diane was never undisputed with ever served nor did Diane receive a process, copy Instead, both what was a complaint. parties signed designated “conditional reconciliation filed with the was agreement” 2, 1997, clerk on filed his chancery April days Daniel The it filed would as agreement complaint. provided “shortly” an attachment to the divorce complaint.
From Diane wording agreement, agreed, among .not to alcoholic things, other partake beverages illegal drugs, and she would and treatment. The undergo counseling parties that, into the and further agreed agreement entering resuming cohabitation, a trial their were reconciliation. they pursuing with consideration of Diane’s her abuse compliance discontinuing of alcohol and a six-month drugs, during agreement period, that recited Daniel would dismiss his divorce If Diane complaint. divorce, failed to she in turn leave the agreed comply, “accept car, $20,000.00,” with her house not belongings, personal real and make claims to marital or non- personal properties, marital. reconciliation efforts failed. They subsequendy and Diane settlement what
executed agreement, signed property however, labeled a “waiver and this was entry appearance”; did did not have her waive service of nor she process, pleading Rather, of Daniel’s divorce acknowledge receipt complaint. set- simply acknowledged receipt parties’ property pleading and reflected her waiver of the tlement agreement right appear further notice. were filed without These with papers along 12, 1997, divorce decree on or 133 after Daniel filed his May It is Diane was not (1) undisputed complaint. represented decree, counsel she never received a (2) prior of the divorce she never (3) waived copy specifically service of either when the was filed or before process divorce decree was entered. counsel, 5, 1999,
Diane later obtained and on March she 12, 1997, to the court to set aside petitioned May decree. While she the conditional acknowledged having signed and a settlement property time, Diane alleged was during dependent upon Daniel for and advice because she suffered guidance from alcohol- 12, 1997, ism. Her contention for aside the paramount setting May decree was that the court the decree had not chancery granting to do so because Daniel had never acquired perfected Diane, service of on nor did he deliver to her a of his complaint. *4 contention, of her relied support on Ark. R. largely P. and
Civ. 4(a) (i), service of Rule govern 4(a) that the of the the clerk provides “[u]pon filling shall complaint, forthwith issue a summons and cause it to be delivered service to a sheriff or to a the court or authorized person by appointed by law to serve Rule further 4(i) process.” provides following: service the summons is not made upon within 120 If of defendant days filing action shall be dismissed as to complaint, that after of without motion prejudice the court’s initi- upon upon defendant ative. If a motion to extend made is within 120 days filing suit, the time for service be extended the court upon of showing cause. good added.) (Emphasis
As alluded to it is uncontroverted that Daniel never service of on Diane within 120 perfected process his days filing nor did he serve a of complaint, on her or have complaint 484 an she waived service of whereby
her sign
entry
appearance
failures,
These
summons within
120-day period.
required
asserted,
Diane
rendered the
court without
chancery
authority
hear or decide the
divorce.
chancellor
parties’
disagreed,
found
Diane’s
so-called
signature
parties’
specifically
constituted
conditional
reconciliation
entry
agreement
it,
Diane submitted herself to the
appearance,
signing
court’s
Since the reconciliation
had been
jurisdiction.
agreement
and entered
93
within
days (or
signed
mandatory 120-day
from the
of Daniel’s
the chancellor held
filing
period)
had
Daniel
with Rule
Diane
the chancel
4(i).
complied
appealed
to the court of
which affirmed.
lor’s decision
See
appeals,
Raymond
372,
v.
70 Ark.
signed by step” her waiver without her entry reserving objection to the trial court’s lack of We and reverse and jurisdiction. disagree decree. dismiss chancellor’s divorce
Arkansas law is
settled that service of valid
long
process
is
a court
over a defendant. Tuckerv.
necessary
give
61,
275 Ark.
Our case law is well-settled ser equally statutory vice of common-law must requirements, being derogation rights, construed and with them must be exact. strictly compliance
485
Inc.,
373,
Interiors,
921
324 Ark.
S.W.2d 944 (1996)
Carruth Design
461,
Cos.,
Ark.
768
531
Wilburn Keenan
298
S.W.2d
(citing
Farris,
505,
and Edmonson v.
263 Ark.
617
S.W.2d
(1989),
Carruth,
In
this court held that the same
(1978)).
reasoning applies
rules,
to service
court
and that
requirements imposed
proceed
conducted where the
service was invalid renders
ings
attempted
court,
initio.
therefrom void ab
The Carruth
judgments arising
from Tuckerv.
further held that actual knowl
Johnson,
quoting
supra,
Carruth,
aof
does not validate defective
edge
proceeding
terms,
signing filed 93 Daniel’s with the time complied 120-day period Daniel submits that required by 4(i). there is no specific for how a requirement enter their and that party appearance action of a defendant an intention to enter an showing appear ance, whether formal or informal writing parol voluntary on him. For appearance this he binding proposition, relies on Robinson v. 195 Ark. Bossinger, S.W.2d and the (1938), therein: following language answers, continuance, trial, A who party consents to a goes cause, takes an appeal, or does substantial act in a he although summons, has not been served with is deemed to have entered his unless he objects to the preserves juris- protest diction of his person. case, In addition to the Robinson Daniel also Kirk v. cites Bonner, 57 S.W.2d 802 for the (1930), rule that a *6 in court be formal but in voluntary appearance by writing, Kirk, the defendant executed a the issuance proper pleading waiving of summons and At the time of both entering appearance. Kirk, however, Robinsonand of Rules Civil Procedure had not words, been In other Rule was not in effect yet promulgated. 4(i) Likewise, and therefore not in those cases. court was this argued not faced with the due or issues considered jurisdictional cases, our later discussed where this court held that a (1) valid service of a court over process necessary give jurisdiction defendant; actual of a (2) does not validate knowledge proceeding a defective if service of summons is not made (3) process; upon defendant within 120 the case must dismissed; and where (4) service was proceedings attempted invalid render therefrom void and ab initio judgments arising subject to collateral attack at time.
We extend treatment of this because the point only dissenting mentions Ark. R. Civ. P. and 12(a), which are opinion (b), (h)(1), not Rule for the time in argued by 12(a) parties. provides which a defendant must file his answer after the service of summons him, and on and Rule a defendant complaint 12(b) to raise requires his defenses in his or for responsive pleading, eight specified defenses, motion. These defenses include lack by of jurisdiction over the of and of ser- person, insufficiency process, insufficiency vice of The 12(b)(2), (4), dissenting opinion that, submits under Rule 12(h)(1)(A) the defenses of lack (B), insufficient service are waived if the personal defendant fails to to those defenses motion under object Rule 12 or include such defenses in the defendant’s original responsive The dissent because Diane failed to file a pleading. urges defenses, motion these she waived them. raising The dissent is Here, mistaken. service is not the issue. Daniel obtained insufficient Diane, and, fact, no serviceof his and summons on Thus, has never been furnished a Diane was complaint. in no to file a motion to dismiss position any type responsive Rule 12 does not pleading. to the simply facts or situation apply before us.
The similar to the discussed dissenting opinion, argument above, asserts Diane had waived defense she had because she entered her in Daniel’s proceeding by signing conditional reflected dissent, of the divorce Daniel. style citing is not cases, formal necessary that a submits pleading number Suchor, Divilbliss in a See proceeding. effectuate “appearance” Mut. Ins. Co. v. Farm Bureau 600 (1992); 841 S.W.2d Arkansas (1993); 865 S.W.2d Dep’t Campbell, *7 Farris, 482 (1992); Ark. 832 S.W.2d v. Servs. Human 451 (1986). 713 S.W.2d Norsworthy, Norsworthy course, must one give to the dissent’s Of proposition, accept in to refer to it order construction to the agreement liberal the reconciliation kind. Unquestionably, as a any pleading — not a it it is an responsive is what says agreement to relief from can the said Nor agreement request pleading. whether to decide on is the appeal the court. Again, only question was a waiver of service of the process. the signed agreement parties must, we reach the inevi- the as we strictly, Construing agreement to a lawful the does not amount table conclusion that it. did Diane waive service nor by signing service process, that none of the cases cited in the dissent We further out point case, The Divilbliss for of its is theory position. supportive Procedure, 55 of the Arkansas Rules of not involved Rule example, fact, served, been the defendant Divilblisshad but issue 4(i); took servicethat there was whether the defendant Next, the under Rule Farm 55(b). constituted the and undermines Bureau case is also not dissent helpful actually There, with its defendant Bureau was never served Farm position. but its Defend- was sent process, attorney complaint. answer, ant’s but also reserved attorney responded by filing timely the the lack and defendant’s court’s objection jurisdiction the insufficient service of The Farm Bureau court upheld trial court’s dismissal of the and with agreed plaintiff’s complaint, answer, that, the lower court the defendant filed an it had while and reserved its therefore had not entered its properly objections dissent, Farris, The third case cited the is also of no appearance. the value to dissent’s That decision discusses theory. merely earlier distinction between general special appearances announced the rule as as a either moves prevailing long party lack before to dismiss for (or objects jurisdiction) personal plead- merits, with on or combines the objection ing merits, and this objection response preserved last, obviates the And the dissent appearance.” procedure “special There the cites of its out-of-state Norsworthy support position. served, but he a motion to defendant was with evidently responded dismiss, the Arkansas challenging court’s chancery jurisdiction. However, while the defendant court’s questioned chancery he relief in jurisdiction, affirmative the form of a sought so the stay Texas Arkansas courts could have direct communication in accordance with the Uniform Child Act. The Custody Jurisdiction court held such a Norsworthy court for affirmative request relief amounted to a conclusion, general our appearance. study of Rule 12 and the cases cited in the dissent show are in no they ' way situation now controlling before us.
As a final Daniel argument, asserts that laches prevents Diane from decree, to set least, aside petitioning at the time Diane contention, decree. In signed of this he support cites Self, (1995), its Self statement that laches “has been in numerous cases where applied one has remarried, obtained an invalid party divorce and but the first then waits too under the spouse facts of the long case particular *8 to her assert to have the void right vacated.” Id. at judgment 636. However, bemay in that easily the initial distinguished, Self decree voidable; was held to be case, in the instant merely Self decree was void ah initio. when the Certainly, 1997 decree May filed, was under Rule 120-day had period 4(i) and as passed, discussed in detail the reconciliation did nothing to validate the Thus, service under the Rule. Daniel’s to attempt invoke laches as a defense is because the trial court had misplaced no or jurisdiction hear the cases in the authority first see place, Tucker, much less consider such a supra, defense or argument. Cf. Farm Bureau Mutual Co., Ins. supra. conclusion, we hold that the chancellor erred in grant Daniel’s motion for
ing summary judgment to set petition decree, aside the divorce and that order is reversed and hereby dismissed without prejudice.
Brown, Imber, dissent. JJ., Thornton, Imber, Justice, The dissenting. Annabelle Clinton holds that the majority today Washington Chan- County Court was without cery jurisdiction enter a decree of divorce in the action filed Mr. by because he failed Raymond to perfect service Ms. upon within 120 Raymond days filing for divorce. I must dissent because the fails to majority recognize that service defendant, be waived process may as Ms. did in this case. Raymond of that or waiver service is
“Service
process
necessary
the due
of the United States
order
satisfy
process requirements
Stevens,
464, 466,
Meeks v.
301 Ark.
diction is defense
can waived
the defendant. Arkansas
Farris,
575, 578,
Human Servs.
An overt action other than part court, the case as in objecting jurisdiction, is an recognizes 479, 487, v. appearance. Norsworthy Norsworthy, Suchor, 8, 15-16, S.W.2d 451 Divilbliss v. (1986); S.W.2d 600 If the defendant action that is engages service, not defensive the purely prior asserting insufficiency an Hale, is entered and the defense is waived. Wallacev. A defensive action an such supra. is as purely engaging However, Farm Bureau discovery. formal Campbell,supra. plead not to effectuate ing an necessary Divilbliss v. “appearance.” Suchor, See, Farm Bureau v. supra. (a for e.g., Campbell,supra request Farris, affirmative Arkansas DHS v. relief); (a motion supra request and a counsel to motion to ing appointment intervene response a third motion party); Norsworthy (a Norsworthy,supra stay proceedings). case,
In the instant Ms. a document Raymond entitled signed “Conditional Reconciliation This was in Agreement.” agreement form the of a document At the legal filing. head of prepared the action, is the agreement divorce style pending containing court, name of the of the case style indicating plaintiff defendant, and the docket number to the case. The assigned itself agreement states that it is to be filed as an attachment to clearly for divorce in the Court of complaint Chancery Washington Arkansas. The County, further if agreement Ms. provides Raymond alcohol rehabilitation successfully completes program months, and abstains from alcohol for a Mr. six period Raymond would dismiss in the pending Washington Circuit Court. County
There can be doubt no the conditional recon by signing ciliation Ms. knew she was Raymond into an entering within the confines divorce action in the pending states, Court. As Washington County Chancery actual majority of a action does not validate knowledge defective pending *10 Inc., Interiors, Carruth v. 921 s.W.2d 944 Design However, in this case went involvement Ms. Raymond’s She committed an overt of its mere knowledge pendency. beyond be filed the conditional act by signing defensive was not the court. this agreement purely with Signing To by entering of Ms. Raymond. contrary, part to a course of action committed Ms. Raymond into agreement, under determining in the divorce parameters proceedings, from that forward. the divorce would By point proceed it a of the divorce into this and making part entering entered an and submitted Ms. Raymond proceeding, defense of thereby herself to court’s jurisdiction, waiving any insufficient service of ARCP Rule 4 in majority’s interpretation summary, the onus of Rule defense of insuffi-
this case shifts whereby asserted must be cient service specifically preserved. process holds that service of instead insufficient The majority’s opinion waived. In so it unless doing, preserved specifically abolishes our line of to the For this effectively precedent contrary. reason, I must dissent. respectfully this dissent. JJL,join Thornton,
Brown