Opinion
No. 96-359.
November 5, 1996.
Appeal from the Circuit Court, Gadsden County, N. Sanders Sauls, J.
Loula M. Fuller of Myers, Forehand Fuller, Tallahassee, for Appellant.
Warren J. Bird, Tallahassee, for Appellee.
Appellant, the former wife in a proceeding to enforce the child support provision of a South Carolina divorce decree, appeals an order of the trial court which vacated the registration of the foreign support judgment.
The parties were married to each other in South Carolina on September 12, 1946. The parties' marriage was dissolved pursuant to a divorce decree filed November 8, 1972, in the Family Court of Lexington County, South Carolina. At that time, the Code of Laws of South Carolina contained a provision authorizing constructive service on a resident of the state for purposes of an award of child custody, or for support of minor children or wife. See S.C. Code Ann. § 10-451 (1962). The divorce decree here at issue indicates the former wife and her attorney were before the South Carolina court at the final hearing, but the former husband was not present and was not represented by counsel. The divorce decree included a finding that the former husband was served in accordance with the procedure set forth in the South Carolina Code, "and that the Defendant in this action cannot, after due diligence, be found within the State of South Carolina, that the residence and whereabouts of the Defendant are unknown and cannot with reasonable diligence be determined or ascertained." The South Carolina family law judge found that three of the parties' four children had attained their majority, one child was a minor living at home, and the parties last lived together as husband and wife in South Carolina. A divorce was granted on the basis of a separation for more than three years, custody of the minor child was placed with the former wife, and the former husband was ordered to pay the sum of $600.00 per month "as child support and alimony." Paragraph 7 of the decree stated:
7. That the Defendant be and he is hereby granted the right to have visitation privileges with the minor child, provided he makes the support payments and applies to the Court for definite visitation privileges.
On July 25, 1991, the former wife, now a resident of Georgia, filed a notice of registering a foreign support order in Gadsden County Circuit Court, seeking support allegedly unpaid by the former husband, currently a Florida resident. By this notice, the former wife sought unpaid support in the amount of $76,500.00, exclusive of interest. The former husband filed a response and affirmative defenses, admitting both the amount of the award and that no payment had been made, but denying that he was in arrears in payment of support or that he was responsible for interest and attorney's fees. As affirmative defenses, the former husband alleged (1) fraud in securing the original order, in that the former wife was aware of the former husband's residence and address at the time of the dissolution but did not serve him personally; (2) illegality, in that the award of $600.00 per month was both alimony and child support, the former wife remarried shortly after entry of the judgment and had no legal entitlement to the alimony portion of the award after that time, and the minor child reached majority years before, precluding collection of sums outstanding after the child's majority; and (3) estoppel, laches, waiver and release, in that the judgment at issue was entered nineteen years ago, the minor child attained majority nine years ago, and neither the former wife nor the child made any effort to enforce the judgment during the preceding nineteen years. The former husband further alleged that the former wife told him he did not have to pay support in return for surrendering his visitation rights.
Both parties testified at the hearing held on the notice of registering the foreign support order. The trial court concluded that in the absence of personal service, the South Carolina court did not have personal jurisdiction over the former husband, and thus could not adjudicate any support claims under South Carolina or Florida law. Without addressing the merits of any of the affirmative defenses raised by the former husband, the trial court entered a final judgment vacating the registration of the foreign support judgment. The former wife filed a motion for rehearing, raising as grounds therefor that the trial court misapprehended or overlooked law requiring the Florida court to give full faith and credit to the South Carolina divorce decree, and misapprehended South Carolina law. The trial court summarily denied the motion for rehearing.
When the subject divorce decree was issued, the South Carolina Code contained a provision authorizing service by publication upon a resident of the state for purposes of an award of child support or alimony, when service was effected in accordance with the procedure outlined in the statute. See S.C. Code Ann. § 15-9-710(2) and (8) (1976), replacing S.C. Code § 10-451 (1962). The distinction between service by publication upon a resident defendant, as opposed to a nonresident defendant, was recognized in the South Carolina decisions which the trial court cited as support for the ruling that the South Carolina court could not adjudicate the support issue, because it lacked personal jurisdiction over the former husband. See Carnie v. Carnie, 252 S.C. 471, 167 S.E.2d 297, 299 (S.C. 1969); Knight v. Knight, 211 S.C. 25, 43 S.E.2d 610, 612 (S.C. 1947); Matheson v. McCormac, 187 S.C. 260, 196 S.E. 883 (S.C. 1938).
Pursuant to Article IV, Section 1, the Full Faith and Credit clause of the United States Constitution, Florida courts must give full faith and credit to the judgments of other states so long as the foreign court had jurisdiction to enter the judgment. Therefore, the trial court was in error to conclude merely that in the absence of personal service, the South Carolina court did not have personal jurisdiction over the former husband, and thus could not adjudicate any support claims under South Carolina or Florida law.
We, therefore, reverse the judgment on appeal and remand to the trial court, for consideration of the affirmative defenses raised by appellee, but not ruled upon in the proceedings below.
BOOTH, J., concurs.
BENTON, J., dissents with opinion.
On appeal, Ms. Cox's sole contention is that Florida courts should give the 1972 judgment she obtained against Mr. Clark in South Carolina full faith and credit. Insofar as the judgment dissolved the parties' marriage, her position is well taken. But the trial court properly declined to give full faith and credit to the child support provisions of the South Carolina judgment. The South Carolina court never obtained jurisdiction over Mr. Clark, even though it had jurisdiction over the res of the marriage. Service on Mr. Clark by publication in a South Carolina newspaper — without mailing a copy of the complaint and summons to his last known address — did not confer in personam jurisdiction on the South Carolina court.
In his response to notice of registering foreign support order and affirmative defenses thereto, the former husband framed the issues tried below. The first affirmative defense pleaded was denominated fraud:
[P]etitioner committed fraud upon the [South Carolina] court in securing the original order which she now seeks to enforce. The petitioner was aware of the residence and address of respondent at the time of the dis[s]olution, yet did not have him served personally, but instead fraudulently served respondent by publication in an area where petitioner knew he did not reside. Further, the allegations and finding of fact contained within the [South Carolina decree] based upon petitioner's testimony are untrue and constitute deliberate fraud.
The Florida trial court's final judgment vacating the registration of foreign support order characterizes this defense as "fraud (attacking the South Carolina judgment for lack of jurisdiction with respect to matters of support)." The Florida trial court ruled that "the South Carolina court did not have personal jurisdiction" over Mr. Clark, and so lacked jurisdiction with respect to matters of support.
Question Open
As a preliminary matter, the question whether the South Carolina court acquired in personam jurisdiction in 1972 is not foreclosed by the South Carolina judgment entered then. The rule is that "the judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state in which it was pronounced." Hampton v. M'Connel, 16 U.S. (3 Wheat.) 234, 235, 4 L.Ed. 378, 379 (1818)(Marshall, C.J.). It is clear that the jurisdictional question would be open in South Carolina.
In South Carolina, a divorce decree does not render the question of the divorce court's jurisdiction over a husband for support purposes res judicata where the "[h]usband did not appear to contest jurisdiction in the divorce action." Crowe v. Crowe, 289 S.C. 330, 345 S.E.2d 498, 499 (1986). The present case differs from Rodriguez v. Nasrallah 659 So.2d 437 (Fla. 1st DCA), review denied, 666 So.2d 144 (Fla. 1995) and Baker v. Bennett, 633 So.2d 91 (Fla. 4th DCA), cert. denied, ___ U.S. ___, 115 S.Ct. 580, 130 L.Ed.2d 495 (1994), where the jurisdictional question was "expressly litigated and decided," Baker, 633 So.2d at 93, in the foreign forum. The former husband here did not appear and litigate the question in South Carolina.
A South Carolina "judgment, void for lack of jurisdiction over a defendant, may be collaterally attacked in a second proceeding unless the jurisdictional question has already been adjudicated between the parties." Crowe, 345 S.E.2d at 499. Whatever doubt may have been cast on the reach of this rule by Yarbrough v. Collins, 293 S.C. 290, 360 S.E.2d 300 (1987), the rule unquestionably applies where the "publication affidavit" is fraudulent. Id. 360 S.E.2d at 301; Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114, 116 (Ct.App. 1989).
Question Decided
The pertinent South Carolina statute in effect at the time required not only publication, but also that a copy of the summons be mailed to the defendant, in order to effect constructive service. Since the order of publication dispensing with the requirement of mailing was — the court below implicitly found — predicated on a false affidavit, the South Carolina court did not obtain jurisdiction under the statute.
Section 10-454, South Carolina Code Annotated (Law. Co-op. 1962)(renumbered as section 159 — 740), provided that:
The order of publication shall direct the publication to be made in one newspaper, to be designated by the officer before whom the application is made, most likely to give notice to the person to be served and for such length of time as may be deemed reasonable not less than once a week for three weeks. The court, judge, clerk, master or judge of probate shall also direct that a copy of the summons be forthwith deposited in the post office directed to the person to be served at his place of residence, unless it appears that such residence is neither known to the party making the application nor can, with reasonable diligence. be ascertained by him.
(Emphasis added.)
"Service need not be made to the party's actual address so long as it is made to an address where there is a reasonable expectation that service will be delivered to the party." United Home Fed v. Rhonehouse, 76 Ohio App.3d 115, 601 N.E.2d 138, 143 (1991). It "is not uncommon for residences to bear post office box addresses." Townsend v. Hanks, 140 A.D.2d 162, 527 N.Y.S.2d 415, 416 (1988).
It is therefore unnecessary to address the underlying constitutional question of procedural due process. See Schroeder v. City of New York, 371 U.S. 208, 211, 83 S.Ct. 279, 282, 9 L.Ed.2d 255, 258 (1962) ("[N]ewspaper publications and posted notices in the circumstances of this case did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires."); Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 70 S.Ct 652, 94 L.Ed. 865 (1950); Abba Gana v. Abba Gana. 251 Ga. 340, 304 S.E.2d 909, 912 (1983)("[D]ue process requires that the chosen method of service be reasonably certain to give actual notice of the pendency of proceedings to those parties whose liberty or property interests may be adversely affected by the proceeding[,]" if feasible.).
Viewed in a light most favorable to the former husband, the evidence showed that the wife and her counsel knew the former husband's address on June 12, 1972, when they petitioned for the order of publication and filed an affidavit in support claiming that the former husband's "whereabouts are unknown." Based on this misrepresentation, the Lexington County Family Court in South Carolina entered an order of publication erroneously finding that the former husband's whereabouts were unknown and ordering "that the mailing of copies of the Summons and Complaint be dispensed with."
On January 27, 1972, the former wife's attorney had sent a letter to the former husband at his APO address in San Francisco reporting that the former wife had "conferred with [the attorney's] office concerning [its] representing her in a divorce action" and requesting the husband's views on this development. On March 26, 1972, the former husband responded in a letter from Quang Ngai, Viet Nam, which reached the attorney. This correspondence came in evidence below.
The former husband testified that he received another letter from the former wife's attorney in October of 1972, which informed him that the date of the divorce hearing had been moved from October 1972 to November 1972, but that he never received a complaint or any other legal document in connection with the proceeding until December of 1973, when he received a copy of the divorce decree from his former wife's attorney.
In ruling that "the South Carolina court did not have personal jurisdiction over the respondent," the court below must be deemed to have credited the former husband's evidence in support of the allegations he made in his affirmative "fraud" defense. We are obliged to respect this view of the evidence even in the absence of explicit findings of fact. "In this case we are able to ascertain the trial court's unstated findings necessary to the conclusion it reached. Our duty in these circumstances is to accept the evidence favorable to the party prevailing below and disregard the conflicting evidence [if any] supporting appellant's position." Jacquin-Florida Distilling Co. v. Reynolds, Smith and Hills, Architects-Engineers-Planners, Inc., 319 So.2d 604, 607 (Fla. 1st DCA 1975). See Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 680 (Fla. 1977); Cape Publications, Inc. v. Adams, 336 So.2d 1197, 1199 (Fla. 4th DCA 1976), cert. denied, 348 So.2d 945 (Fla. 1977), and cert. denied, 434 U.S. 943, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977). I respectfully dissent.