Tiger v. Pennel

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

STATE OF ARIZONA, ex rel., DEPARTMENT OF ECONOMIC
SECURITY, (MELISSA TIGER), Petitioners/Appellees,

v.

MICHAEL PENNEL, Respondent/Appellant.

No. 1 CA-CV 23-0236 FC
FILED 06-04-2024

Appeal from the Superior Court in Maricopa County
No. FC2021-095515
The Honorable Ashley Rahaman, Judge Pro Tempore
The Honorable Marvin L. Davis, Judge

REVERSED IN PART, VACATED IN PART; REMANDED

COUNSEL

Fromm Smith & Gadow, P.C. Phoenix
By Stephen R. Smith, Christopher J. Torrenzano
Counsel for Petitioner/Appellee Melissa Tiger

Arizona Attorney General’s Office, Phoenix
By Amber Pershon
Counsel for Petitioner/Appellee Arizona Department of Economic Security

Berkshire Law Office, PLCC, Tempe
By Keith Berkshire, Kristi Reardon, Alexandra Sandlin
Counsel for Respondent/Appellant Michael Pennel
 TIGER v. PENNEL
Opinion of the Court

OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 Michael Pennel (“Father”) appeals the superior court’s order
denying his motion to set aside a default judgment that ordered him to pay
child support to Melissa Tiger (“Mother”). Because Mother failed to show
that service through alternative means was justified, or that service through
such means was reasonably calculated to give him notice of the proceeding,
we reverse the court’s order denying Father’s motion to set aside, vacate
the default judgment, and remand for further proceedings.

BACKGROUND

¶2 Mother and Father are the unmarried parents of one child
(“Child”), born in January 2021. In November, Mother petitioned to
establish paternity and child support. She requested child support and past
support “in an amount commensurate” with the Arizona Child Support
Guidelines A.R.S. § 25-320 app. (“Guidelines”). A week later, the Arizona
Department of Economic Security (“ADES”) filed a notice of appearance
only to address “support/reimbursement issues,” and stated that a copy
of the notice had been mailed to Mother’s counsel and to Father at his home
in Missouri.

¶3 On January 31, 2022, the superior court issued a notice of
intent to dismiss the case for lack of service. A few weeks later, Mother
moved for alternative service, asserting she had conducted a skip trace and
had tried to serve Father at his Colorado and Missouri addresses. The
efforts relating to the Colorado address included four separate attempts to
serve Father personally. But the extent of Mother’s efforts to serve Father
at the Missouri address was a single letter, sent on January 20, 2022, with a
return receipt requested.

¶4 The court granted the motion for alternative service, directing
Mother to “send a copy of all documents to Respondent’s
[F]acebook/[I]nstagram account messaging service and shall leave a copy
of all documents at Respondent’s last known address.” Mother then
applied for entry of default judgment, supporting her alternative service on

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Opinion of the Court

Father with a copy of an Instagram message containing a Dropbox link sent
to him together with an affidavit of service indicating the petition and
summons were posted at Father’s Missouri address.

¶5 The court held a default hearing in August 2022. On the issue
of service, Mother’s counsel avowed “that all steps that were ordered to be
taken to provide alternative service . . . were taken.” Mother testified as to
who was the father, and the court determined Father was the natural parent
of Child.

¶6 The court then addressed child support. 1 Mother briefly
described Father’s income, stating that “he’s a player [in] the NFL[;] we did
a public records search, and his [Chicago] Bears’ contract was available
through public record.” The court found that Father made over $90,000 a
month compared to Mother’s monthly income of $4,367.67. When the court
asked whether Mother was seeking an upward deviation, her counsel
stated, “I didn’t know if I would need to amend [] the petition because I
don’t think that we had pled anything about a deviation.” The court
responded that the Guidelines support a deviation, which prompted
Mother to request $6,000 a month. The court replied, “I think that it should
be $10,000,” to which Mother agreed. The court then ordered Father to pay
$190,000 as his past child support obligation, and signed the default
judgment establishing paternity, child support, and vital records.

¶7 Two months later, Father moved to set aside the default
judgment under Arizona Rule of Family Law Procedure (“ARFLP”)
85(b)(1), (4), and (6). Father argued the judgment was void for lack of
service of process, and the superior court erred by ordering an upward
deviation in child support. The court summarily denied Father’s motion.
After Father moved for entry of a final order, he timely appealed, and we
have jurisdiction under A.R.S. § 12-2101(A)(1), (2).

DISCUSSION

¶8 Father argues the superior court violated his due process
rights by deviating from the Guidelines because Mother did not request a
deviation. He also argues the court erred by ordering a deviation without
considering the relevant factors under A.R.S. § 25-320 and the Guidelines.
Finally, he contends the default judgment is void for lack of service of

1 In Mother’s proposed default judgment, she requested that Father be
ordered to pay child support of $3,145 per month and past child support in
the amount of $59,755.
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Opinion of the Court

process. Because Father’s argument that he was not properly served is
dispositive, we need not address his other arguments.

¶9 We review de novo whether service was proper, Ruffino v.
Lokosky, 245 Ariz. 165, 168, ¶ 9 (App. 2018), but we defer to the superior
court’s factual findings unless they are clearly erroneous, Huskie v. Ames
Bros. Motor & Supply Co., Inc., 139 Ariz. 396, 401 (App. 1984).

¶10 Father argues the default judgment is void for lack of proper
service because Mother failed to use “a manner of service of process that
was reasonably calculated to inform [him] of the proceedings.” A default
judgment is “void if it was entered without jurisdiction because of a lack of
proper service.” Ruffino, 245 Ariz. at 168, ¶ 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 Est.
Inv., Inc. v. Schrader, 226 Ariz. 128, 129, ¶ 6 (App. 2010).

¶11 “Due process requires 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.’” Blair v.
Burgener, 226 Ariz. 213, 219, ¶ 19 (App. 2010) (quoting Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). In a child support
proceeding, service of process is governed by ARFLP 41. Service is made
by: (1) delivering the summons and pleading to the individual personally,
(2) leaving the documents at the person’s dwelling or usual place of abode
with someone of suitable age and discretion who resides there, (3)
delivering the documents to the person’s agent authorized to receive
service, or (4) mailing the documents, requesting restricted delivery,
requiring a signed receipt. ARFLP 41(c), (d). However, if a party can show
service under ARFLP is impracticable, the superior court may order service
be accomplished in another manner. ARFLP 41(l)(1).

A. Motion for Alternative Service

¶12 Mother failed to provide evidence that service at Father’s
Missouri home was impracticable. See Bank of N.Y. Mellon v. Dodev, 246
Ariz. 1, 10, ¶ 31 (App. 2018) (explaining that “[i]mpracticable does not mean
impossible, but rather that service would be ‘extremely difficult or
inconvenient’”). In her motion for alternative service, Mother asserted that
both the Colorado and Missouri addresses are Father’s “last known current
address[es].” The likelihood of Father’s current address being in Missouri
was bolstered by ADES listing it as his address in their notice of appearance
filed well before Mother’s motion for alternative service. Even so, Mother

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Opinion of the Court

only attempted to personally serve Father at the Colorado address. Mother
offered no evidence showing that personal service in Missouri would have
been any more difficult or inconvenient than her attempts to serve Father
at the Colorado address. And the one letter sent to Father’s Missouri
address was insufficient to show impracticability. Cf. Schrader, 226 Ariz. at
130, ¶ 11 (concluding a single attempt to serve the defendant was
insufficient to establish impracticability without evidence of evasion).

¶13 Additionally, Mother never attempted to serve Father at his
place of work, even though she knew he was employed by the Atlanta
Falcons and played football at the NFL stadium in Atlanta, Georgia. In her
response to Father’s motion to set aside, Mother asserted that she contacted
a process server in Atlanta, who told her the stadium is private property
and a process server would not be permitted to enter any area that would
allow service of the documents. Even if that assertion had been included in
Mother’s motion for alternative service, it does not help Mother’s position
that personal service was impracticable when she had not produced
evidence of any effort to contact Father’s employer, agent, or other
employment-related contacts. See Wilson v. Howard, 1 CA-CV 20-0044 FC,
2021 WL 566336, at *2, ¶ 13 (Ariz. App. Feb. 16, 2021) (mem. decision)
(concluding that a default judgment was void for lack of service because
mother did not try to personally serve father at his home or workplace).
And to the extent Mother asserts that Father was evading service of process
by failing to monitor his mail during the football season, she needed to
attempt to serve him personally at his Missouri address to support that
assertion and include such information in the motion for alternative service.

¶14 Defending her decision to seek an alternative service order
through social media, Mother cites Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709,
716 (N.Y. Sup. Ct. 2015). In addressing wife’s request to allow alternative
service (through Facebook) in a divorce proceeding, the court in Baidoo first
noted personal delivery of the summons was impossible because wife’s
hired investigators could not find husband, the post office had no
forwarding address, there was no billing address linked to his prepaid cell
phone, and the motor vehicle department lacked any record of him. Id. at
712. The court then required wife to submit a supplemental affidavit to
verify (1) that the Facebook account indeed belonged to husband, (2) that
husband is “diligent in logging on to his Facebook account,” and (3)
whether a backup means of service was available, such as a last known
address or email address. Id. at 714. The affidavit included copies of
exchanges between the wife and husband when she had contacted him
through his Facebook page, which confirmed that he regularly logged into
his account. Id.

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¶15 Ultimately, the Baidoo court granted wife’s request, directing
her counsel to send husband a web address or an image of the summons
from wife’s Facebook account once a week for three weeks, and to inform
him of the Facebook message by calling him and sending a text message.
Id. at 716. Baidoo does not support Mother’s position; instead, it
demonstrates the degree of care a court must take to ensure that requests
for alternative service through social media avenues satisfy due process.
Id.; see also Doe v. Hyassat, 337 F.R.D. 12, 16 (S.D.N.Y. 2020) (“Service
exclusively through Facebook – particularly in the absence of concrete
evidence demonstrating regular use and the identity of the Facebook user
– raises significant due process concerns.”). On this record, the superior
court erred in implicitly concluding that serving Father through his social
media accounts was reasonably calculated to alert Father about the pending
child support proceeding. See Blair, 226 Ariz. at 219, ¶ 19.

B. Lack of Compliance

¶16 Even assuming alternative service was justified, Mother has
not shown she complied with the order for alternative service. In her
motion, Mother asked the superior court to allow her to serve Father with
the pleading and summons by attaching them to a Facebook or Instagram
message. Noting that Father is an NFL player, Mother asserted his social
media accounts show “he is an active user on both sites” and thus timely
receipt of the documents “via a direct message” could be reasonably
presumed. The court granted the motion, allowing Mother to send the
documents to Father’s Facebook/Instagram “account messaging service”
and directed her to “leave a copy of all documents at [his] last known
address.” Mother then sent the message via a Dropbox link to Father’s
Instagram account.

¶17 Mother does not dispute that the Dropbox link in the
Instagram message she sent to Father did not include a copy of the
summons and thus failed to comply with ARFLP 41. 2 The order granting
alternative service specifically required that “all documents” be sent
through Father’s Facebook/Instagram messaging service. And when a
court orders service by alternative means, the serving party “must also mail

2 Mother’s use of a Dropbox link to convey the documents through
Instagram was problematic because there was no reference to Dropbox in
the superior court’s order for alternative service. The absence of that
information, as well as the omission of any technical requirements for
accessing the link, further undermines Mother’s contention that she
complied with the alternative service order.
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. . . any court order authorizing an alternative means of service to the last-
known business or residential address of the person being served.” ARFLP
41(l)(2) (emphasis added). Mother has not shown that she mailed a copy of
the order granting alternative service to Father’s Missouri address or his
place of employment. Because alternative service was insufficient, the court
erred in denying Father’s motion to set aside.

CONCLUSION

¶18 The default judgment is void for insufficient service of
process. We therefore reverse the court’s order denying Father’s motion to
set aside, vacate the default judgment, and remand for further proceedings.
In our discretion, we deny the parties’ requests for attorneys’ fees under
A.R.S. § 25-324(A). As the successful party on appeal, Father is awarded
taxable costs subject to compliance with Arizona Rule of Civil Appellate
Procedure 21.

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

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