
    Claude Eugene GROSS v. Shelby LOEWEN.
    Civ. 6186.
    Court of Civil Appeals of Alabama.
    March 2, 1988.
    
      Thomas M. Galloway, Jr., of Collins, Galloway & Smith, Mobile, for appellant.
    William Prendergast and Lois Brasfield, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This appeal arises from the trial court’s denial of defendant’s motion for relief from judgment.

The dispositive issue is whether the wife’s affidavit alleging avoidance of service by the non-resident ex-spouse was sufficient to warrant service by publication.

The trial court permitted service by publication and, as a result of the hearing at which the husband was not present, increased the husband’s child support obligation from $70 to $500 per month. At the time of that child support modification order in 1981, the husband was then in arrears on his child support obligation in the amount of approximately $1,400. In 1987 the husband filed a motion for relief from the 1981 judgment. The husband apparently filed his motion at that time in response to collection efforts made by the Internal Revenue Service on the child support arrearages which had accumulated since 1981.

After a hearing on the husband’s motion, the trial court denied that motion for relief from the 1981 child support modification order. The husband appeals. We reverse and remand.

The husband contends that he was not properly served in this case and that such a failure of service deprived the trial court of jurisdiction and rendered its 1981 order void. Specifically, he contends that service by publication in this case failed to comply with the requirements of Rule 4.3(d)(1), Alabama Rules of Civil Procedure, and was, therefore, ineffective. We agree.

Rule 4.3(d)(1) provides in pertinent part as follows:

“(1) Affidavit Necessary. Before service by publication can be made in an action where the ... defendant avoids service, an affidavit of a party or his counsel must be filed with the court averring that service of summons or other process cannot be made because ... the defendant avoids service, averring facts showing such avoidance.”

The trial court permitted the wife to serve the husband by publication based upon an affidavit which reads in pertinent part as follows:

“Personally appeared before me, the undersigned authority in and for said State and County, Shelby Gross Lofelwen, who being by me first duly sworn, doth depose and say that she is the complainant in the above entitled cause, that she and the respondent, Claude Eugene Gross, are each over twenty-one years of age, and that he is a non-resident of the State of Alabama, and resides at 140 Windward Lane, Roswell, Georgia 30077. However, the defendant is avoiding service, as service attempted by certified mail was returned undelivered.” (Emphasis supplied.)

The dispositive question thus becomes whether the wife’s statement that, “the defendant is avoiding service, as service attempted by certified mail was returned undelivered,” meets the Rule 4.3(d)(1) requirement that “facts showing such avoidance” be averred in the affidavit. (Emphasis supplied.)

In Richardson v. Arrington, 431 So.2d 1301, 1302 (Ala.Civ.App.1983), we stated the following:

“Under Rule 4.3(d)(1), if service by publication is made necessary because the defendant has avoided service, an affidavit must be made alleging that defendant avoids service and averring facts showing such avoidance. Failure to comply with the requirements of Rule 4.3(d)(1) in the averments of the affidavit renders service by publication ineffective. Miles v. McClung, 385 So.2d 1326 (Ala.Civ.App.1980).”

In Miles v. McClung, 385 So.2d 1326, 1327 (Ala.Civ.App.1980), we noted that

“The Committee Comments to Rule 4.3 clearly indicate that in a case such as this service by publication is to be allowed only when there is an ‘element of culpability on the part of the defendant.’ Moreover, ‘More than mere inability to find the defendant is required because of the use of the term “avoidance” of service.’ ”

Recently, Professor Jerome Hoffman made the following pertinent observations with respect to the issue at bar:

“b. Avoids service — A party moving for service by publication must show affirmatively, by affidavit or otherwise, that the party to be served ‘avoids service.’ The showing must go beyond mere conclusory assertions of the affi-ant, deponent or witness by ‘averring facts showing such avoidance.’ Rule 4.3(d)(1), ult. clause. Avoidance means that ‘[m]ore than mere inability to find the defendant is required’; the moving party must show an ‘element of culpability on the part of the defendant.’ Rule 4.3, committee comments. See also Richardson v. Arrington (431 So.2d 1301 (Ala.Civ.App.1983)). And one court has said that ‘the draftsmen [of rule 4.3] required proof of “culpability” or a “hiding out” by a defendant before ... in personam judgment can be entered on service by publication.’ Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D.Ala.1984). The trial court must make a finding of avoidance upon the moving party’s showing. Without such a showing and finding, an in personam judgment obtained by default and solely upon service by publication is void. Miles v. McClung, 385 So.2d 1326 (Ala.Civ.App.1980).”

Hoffman, Service by Publication under Rule 4.3, 49 Ala.Law. 20 (1988) (emphasis supplied).

From the face of the affidavit in this case, we cannot determine upon what facts the allegation was based that could lead to a conclusion that the husband was “avoiding service.” The affidavit does not recite any facts which would suggest that the husband was attempting to avoid personal service such that service by publication would be proper.

It is true that our supreme court has heretofore stated that “a failure to claim mail may, in some instances, be construed as an avoidance of service.” Marshall v. Mid-State Homes, Inc., 468 So.2d 131, 132 (Ala.1985). Such a failure to claim mail, however, is but one factor which could be considered with others set out in the affidavit in concluding that a defendant was avoiding service. The supreme court recently held that the return of an unclaimed certified letter is not sufficient to warrant service by publication. See March v. Stringer, 518 So.2d 65 (Ala.1987).

We cannot hold, under the facts of this case, that the conclusory statement that the husband was avoiding service, based upon the return of an unclaimed certified letter, is sufficient to satisfy the requirement of Rule 4.3(d)(1), such that service by publication would be proper.

We, therefore, reverse and remand as to this issue for entry of a judgment consistent with this opinion.

Although it is not dispositive in view of the above, the husband also raises another issue which we feel is necessary to address.

The issue is raised as to whether publication is available as a means of serving a nonresident defendant in the context of domestic relations cases such as the one at bar.

In Braley v. Horton, 432 So.2d 463 (Ala.1983), it was held that personal jurisdiction may not be obtained over a nonresident defendant through the means of service by publication.

Braley is not, however, a domestic relations modification case. That ease does not address, therefore, the question of whether the fact of a court’s having continuing jurisdiction over an appropriate domestic relations case should lead to a different result than that reached in Braley with respect to service of nonresident defendants by publication.

We believe that Campbell v. Campbell, 357 So.2d 129, 131 (Miss.1978), correctly and exhaustively analyzes this issue. In concluding that nonresident defendants may be served by publication in child support modification cases, the Supreme Court of Mississippi made the following pertinent observations:

“Examination of other authorities and decisions from other states reveal that the great weight of authority supports the conclusion that where a proceeding for modification of a personal decree of alimony or child support in a matrimonial action is permissible as a mere continuation of the original proceeding in which the award was rendered, as against a party who has since become a non-resident and over whom the court had personal jurisdiction in the original proceeding, the court’s power to modify the award may be exercised upon reasonable notice, including constructive notice, other than personal service of process within the court’s jurisdiction. According to 24 Am.Jur.2d Divorce and Separation, § 852, pp. 966, 967 (1966):
“ ‘A proceeding to modify or terminate an order for child support is not an independent proceeding but is supplementary to, or a continuation of, the original divorce action. Thus, an application to increase payments for the support of a child should be made by a motion filed in the original divorce action.
“‘It is not necessary to serve process upon the father within the jurisdiction of the court in order to modify a decree for child support, where the proceeding for modification is a mere continuation of the divorce action; the court may proceed after reasonable notice is given, even though the father is a nonresident. Of course, the father is entitled to notice of an application to increase payments, and the mother, if she has custody of the child, is entitled to notice of an application to reduce or terminate payments. The manner in which a party is to be notified is governed in some jurisdictions by statute; but in the absence of such a statute any reasonable notice is sufficient.’ ”
See also 62 A.L.R.2d 544, 546 (1958).

As we stated in Brown v. Brown, 476 So.2d 114, 115-16 (Ala.Civ.App.1985), “[i]t has long been the rule in Alabama that, if a divorce decree provides for a child’s support, the trial court, at any time thereafter and without an original reservation of power to do so, may modify that aspect of the decree to meet a change of conditions.” This is so, since “[a] proceeding to modify or terminate a child support order is not an independent action, [but] ... a continuation of or ... supplementary to the original divorce action.” Brown, 476 So.2d at 116.

Section 30-3-25(a)(4), Ala.Code (1975) (1983 Repl.Vol.), the Uniform Child Custody Jurisdiction Act, provides as follows:

“(a) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be:
“(4) As directed by the court, including publication, if other means of notification are ineffective.”

While it is true that we have held that the Uniform Child Custody Jurisdiction Act has no “direct” application to a child support modification case, Brown, 476 So.2d at 116, we believe that § 30-3-25(a)(4) is persuasive authority for service of non-resident defendants by publication in cases such as the one at bar.

Among the purposes of the Uniform Child Custody Jurisdiction Act are the promotion of stable home environments and the facilitation of the enforcement of custody decrees. Ala.Code (1975), § 30-3-21 Surely, there are similar reasons for facilitating the enforcement of child support modification orders through service of nonresident defendants by publication in cases such as the one at bar.

In a Mississippi case decided subsequently to Campbell, 357 So.2d 129, the supreme court noted the following:

“The appellee wants us to distinguish between those cases involving a petition to modify child support and those involving petitions to modify child custody, but we can see no logical distinction that would alter the ruling in Campbell involving the court’s jurisdiction.”

Bradshaw v. Bradshaw, 418 So.2d 64, 65 (Miss.1982). We would add that we can see no logical distinction for providing in Alabama for service by publication in child custody modification cases but not in child support modification cases.

This case is due to be reversed and remanded for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

INGRAM, J., concurs.

BRADLEY, P.J., concurs specially.

BRADLEY, Presiding Judge,

concurring specially:

I agree that the judgment of the trial court must be reversed, but I disagree with that portion of the opinion which holds that an in personam judgment can be based on service by publication on a nonresident defendant.

My examination of the interaction between A.R.Civ.P. 4.2 and 4.3 leads me to the conclusion that publication is not an available alternative for acquiring service over a nonresident defendant.

Supportive of my view is an article by Professor Jerome Hoffman in the January 1988 issue of the Alabama Lawyer. In this article Professor Hoffman says:

“An in personam judgment is one (usually for money damages) that the sheriff can execute against the defendant or one that subjects the defendant to the court’s contempt power. Rule 4.3(a)(2), ult. sent., provides: ‘In no event shall an in personam judgment be entered on service by publication except as provided in subparagraph (c) of this rule.’...
“If, upon service by publication, a non-resident appears and defends, an in personam judgment rendered against him will, of course, be valid. But an in personam judgment obtained by default against a nonresident defendant is void if based solely upon service by publication. Braley v. Horton, 432 So.2d 463 (Ala.1983). A party moving for service by publication must show affirmatively, by affidavit or otherwise, that the party to be served is a resident of Alabama, and the trial court must make a finding of residency upon that showing. Id. at 466.
“On its face, Rule 4.2(b)(1)(C) seems to contradict the proposition that in person-am judgments can be obtained by publication only against resident defendants. The rule provides that out-of-state service by certified mail ‘shall be deemed to confer in personam jurisdiction.’ Rule 4.2(b), lines 5 & 6. The provision is not limited on its face to out-of-state service upon Alabama residents; indeed, one supposes that the principal utility of Rule 4.2(b) is to be found in its application to nonresidents. Rule 4.2(b)(1)(C) then provides:
“ ‘... In the event that the return receipt shows failure of delivery, service is complete when the serving party ... files with the clerk an affidavit setting forth facts indicating the reasonable diligence utilized to ascertain the whereabouts of the party to be served, and service by publication is made under Rule 4.3(c).’
“Ult. sent., emphasis added — Here, also, the provision is not limited on its face to out-of-state service upon Alabama residents and, read only with the provision ‘shall be deemed to confer in personam jurisdiction’ and not with the related provisions of Rule 4.3(a)(2) and 4.3(c), would seem quite clearly to authorize in per-sonam judgments obtained by publication against defendants not residents of Alabama. Rule 4.2 must be read with Rule 4.3, however, and the proscription set forth in Rule 4.3(a)(2), ult. sent., is plain: ‘In no event shall an in personam judgment be entered on service by publication except as provided in subpara-graph (c) of this rule,’ which then limits in personam effect to judgments obtained against resident defendants.... Thus, it seems reasonable to suppose that Rule 4.3 was intended to control on this matter and that only resident defendants are subject to in personam judgments obtained by publication under any circumstances.”

Hoffman, Service by Publication under Rule 4.3, 49 Ala.Law. 18 (1988) (emphasis added).

Additionally, in Braley v. Horton, 432 So.2d 463 (Ala.1983), our supreme court remanded a case to the trial court with specific instructions to determine whether a defendant, who was served by publication, was a resident or nonresident of Alabama. The court pointed out that A.R.Civ. P. 4.3 “authorizes service [by publication] on resident defendants; therefore, whether the defendant was a resident or nonresident defendant is critical.” Braley.

Upon remand, the trial court in Braley determined that the defendant was a nonresident of Alabama. Pursuant to this finding, the court held:

“Consequently, the notice of service by publication, pursuant to Rule 4.3(d), ARCP, was not sufficient for the circuit court to acquire jurisdiction of the person. ...”

Braley.

Similarly, it is this failure to acquire personal jurisdiction over Mr. Gross that renders the judgment against him void. I recognize that our trial courts, after entering divorce decrees, possess continuing jurisdiction over questions of child support. Brown v. Brown, 476 So.2d 114 (Ala.Civ.App.1985). However, this continuing jurisdiction is continuing subject matter jurisdiction. Brown. Personal jurisdiction is a separate question, and without such jurisdiction the court is powerless. Wells v. Wells, 376 So.2d 750 (Ala.Civ.App.1979).

In view of my interpretation of Rules 4.2 and 4.3, as well as the supreme court’s holding in Braley, I cannot find that substituted service — specifically, service by publication — provides a mechanism for acquiring personal jurisdiction over a nonresident defendant in an in personam proceeding. In the present case the trial court found the defendant to be in arrears in his child support payments and then modified the child support decree by increasing payments from $70 per month to $500 per month, and this judgment is based on notice by publication. A state court’s ability to enter an in personam judgment against a defendant is limited by the due process clause of the fourteenth amendment. Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983). I believe that acquiring service in this manner oversteps the limits of constitutional due process. See, Alabama Power Co. v. VSL Corp., 448 So.2d 327 (Ala.1984).  