Wilson v. Howard

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

DIANA KAY WILSON, Petitioner/Appellee,

v.

ROBERT MICHAEL HOWARD, Respondent/Appellant.

No. 1 CA-CV 20-0044 FC
FILED 2-16-2021

Appeal from the Superior Court in Maricopa County
No. FC2019-002309
The Honorable Margaret LaBianca, Judge

REVERSED, VACATED, AND REMANDED

COUNSEL

DeWitt-Lopez Law PC, Phoenix
By Kristen DeWitt Lopez
Counsel for Petitioner/Appellee

The Sampair Group PLLC, Glendale
By Patrick S. Sampair
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.

W E I N Z W E I G, Judge:

¶1 Robert Michael Howard (“Father”) appeals the superior
court’s order denying his motion to set aside a default judgment addressing
legal decision-making, parenting time and child support. For the following
reasons, we reverse the superior court’s denial of Father’s motion for relief
from judgment, vacate the default judgment, and remand for further
proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Diana Kay Wilson (“Mother”) were never
married. They share one minor child. Mother petitioned to establish legal
decision-making authority, parenting time and child support in early
February 2019.

¶3 A month later, Mother moved the superior court for
permission to serve Father through alternative means. She argued that
personal service was impracticable because (1) she had once attempted and
failed to serve Father personally at his parents’ house in Goodyear, (2)
Father refused to provide his address, and (3) she believed Father would
evade service. At the same time, Mother admitted she had found “an
accurate address” for Father in Peoria and never attempted to serve him
there, but prospectively promised to try. She also knew Father’s work
address and never tried to serve him there.

¶4 The superior court granted Mother’s motion, authorizing her
to serve Father by mailing physical copies of the required documents to him
at two addresses (the Goodyear and Peoria addresses) and sending
electronic copies via email, text messaging and his social media accounts.

¶5 Mother “immediately mailed Father a copy of the court
order” to both addresses. She also filed an affidavit of service avowing that
her counsel had mailed the physical documents to the Goodyear and Peoria
addresses and sent electronic copies to Father’s email, cell phone and social
media accounts.

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Decision of the Court

¶6 Father never answered Mother’s petition. Mother moved for
default judgment on May 9, averring compliance with the alternative
service order. On June 24, the court entered default judgment on legal
decision-making, parenting time and child support.

¶7 Three months later, Father moved for relief from the default
judgment, arguing it was void because he was not properly served, and the
superior court therefore lacked jurisdiction over him. He claimed the
superior court erroneously authorized alternative service because Mother
had not shown that personal service was impracticable under Arizona Rule
of Family Law Procedure (“Rule”) 41(l). He also argued that Mother failed
to comply with Rule 41(l)(2) by not sending him the order authorizing
alternative service with the required documents and failed to comply with
Rule 44(a)(3)(A) by not mailing the application for default to the Peoria
address.

¶8 Mother responded that she had unsuccessfully attempted
personal service at the Peoria address—after the superior court had
authorized alternative service. She also stated that she had separately sent
Father the order for alternative service and did mail the application for
default to both the Goodyear and Peoria addresses. The superior court
denied Father’s motion to set aside the judgment. Father timely appealed.
We have jurisdiction. See A.R.S. § 12-2101(A)(1), (2).

DISCUSSION

¶9 This court reviews de novo whether due process was
adequate, Ruffino v. Lokosky, 245 Ariz. 165, 168-69 (App. 2018), and how to
interpret court rules, Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012).
We “defer to the superior court’s factual findings, and will not set them
aside unless they are clearly erroneous.” Ruffino, 245 Ariz. at 168, ¶ 9.

¶10 Father argues the default judgment is void for lack of proper
service. A default judgment based on improper service is void and must be
vacated on request. Id. at 168–69, ¶ 10. “If a defendant has not been
properly served, and the defect in service has not been waived, any
resulting judgment is void and must be vacated on request.” Ariz. Real
Estate Inv., Inc. v. Schrader, 226 Ariz. 128, 129, ¶ 6 (App. 2010).

¶11 Service of process in family courts is governed by Rule 41 and
may be accomplished by (a) delivering the pertinent documents to the
individual personally, (b) leaving the documents at the individual’s
dwelling or usual place of abode with someone of suitable age and
discretion who resides there, (c) delivering a copy of the documents to an

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Decision of the Court

agent authorized to receive service for the individual, or (d) mailing the
documents, requesting restricted delivery to the individual, and requiring
a receipt signed by the individual. Rule 41(c), (d). If, however, a party can
show that service is “impracticable” by these traditional means, the family
court may authorize an alternative means to serve process. Rule 41(l).

¶12 Father argues Mother did not show that traditional service
methods were impracticable as to him and the superior court thus erred by
authorizing alternative service. We agree.

¶13 Mother did not show it was impracticable to personally serve
Father. Mother had not even tried to personally serve Father at the Peoria
address or his place of work. And, her one unsuccessful attempted service
at the Goodyear address is not enough, even if coupled with an unspecified
belief that Father was and would continue evading service. See Schrader,
226 Ariz. at 130, ¶¶ 11-12 (evidence of one service attempt without a
showing of impediments to or evasion of service did not establish
impracticability under analogous Arizona Rule of Civil Procedure 4.1). Nor
did Mother offer proof of evasion, and Father had no legal duty to disclose
his location.

¶14 Father also argues that Mother did not comply with the
alternative service requirements. Because the family court erred in
authorizing alternative means of service, we do not reach these arguments.

CONCLUSION

¶15 For these reasons, we reverse the superior court’s denial of
Father’s motion for relief from judgment, vacate the default judgment, and
remand for further proceedings consistent with this decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

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